How Social Media can affect your Personal Injury Case

Few people realize the scope of the investigation into a plaintiff’s personal injury case. Most people don’t know that the defendant and/or insurance company can subpoena telephone call and texting records to determine whether a driver was on the phone or texting prior to the accident. This could be used to prove comparative liability against the Plaintiff and to dismiss the case altogether or reduce the recovery in favor of the Defendant. In other words, the opposing side can argue that the Plaintiff was partially or fully at fault due their own negligence in talking on the telephone and/or texting while driving.

Also, most clients don’t recognize that their texts and/or social media posts regarding a fun night out with friends that resulted in an accident could be used against them to negate their claim. Especially if there is alcohol involved in such outings and this is recorded via text and/or social media postings.

Additionally, many people will be surprised to find out that any pictures or statuses posted could be used to argue that your injuries are not as severe as you’ve led on. For instance, if you have claimed to be permanently injured (which is required to receive pain and suffering damages in Florida) and you post a photo of your trip to the Caribbean where you went water skiing, the defense will argue that you must not be all that injured if you are able to waterski. The moral is to be very cautious with what you put out into the social media universe.

The best advice is to refrain from texting while driving and especially from posting any incriminating photos on social media that may indicate some sort of intoxication or lack of capacity shortly after an accident. Further, if you were severely injured in an accident and are having an unusually productive day, also do not use social media to indicate your productivity in your medical progress as such temporary progress may put a dent in your case due to negation of pain and suffering damages.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your personal injury case and help you obtain the personal injury award you deserve!

Five Truths that Make Medical Malpractice Cases Difficult to Pursue for Personal Injury Lawyers

In order to recover under medical malpractice negligence laws, a plaintiff is required to prove the following elements: Duty to perform in the same manner as other like professionals in the same locality, breach of such professional duty to act, cause in fact, proximate cause and resulting damages. Florida is a comparative negligence state, however, this standard does not relieve the breaching medical professional of any liability since it is rare that a plaintiff contributes to his or her own medical malpractice liability. However, medical malpractice cases are often limited by the following difficulties:

  1. The probability of settling out of court is extremely low in medical malpractice cases;
  2. The low probability of settling outside of court requires the attorney to file suit against the tortfeasor, which is almost always extremely expensive due to discovery requirements and retaining expert witnesses;
  3. The causation required in the negligence standard is harder to prove since there are many other factors and/or players that may have led to your injury;
  4. The abundance of doctors “going bare” and protecting their assets instead of carrying insurance is unusually high in today’s economy (due to the high costs of liability insurance); and
  5. Even if you prove fault on the part of the doctor, your ultimate recovery may be offset by the extreme expense of litigating such tort actions as well as statutory caps on each particular medical malpractice recovery.

In conclusion, while medical malpractice cases are definitely a great area where a plaintiff can recover, these types of claims also have significant limitations. The best idea is to get multiple opinions from lawyers to determine the viability of the medical malpractice claim and/or whether your claim can fall under any special medical malpractice exceptions (such as the negligence by certain classes of medical professionals)

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your personal injury case and help you obtain the personal injury award you deserve!

Difference Between Chapter 7 and Chapter 13 Bankruptcy

If you are having trouble paying your bills, bankruptcy may be a worthwhile option for you to consider. The two most common types of bankruptcy proceedings are Chapter 7 bankruptcy and Chapter 13 bankruptcy. As a preface, bankruptcy is the process where consumers and businesses are allowed to eliminate or only re-pay some or all of their debts under the protection of the federal bankruptcy court. Not everyone qualifies for bankruptcy, but those who do may find it as a way out of their extensive debt obligations. Businesses may use bankruptcy to temporarily stop creditors from pursuing their failing business in order to plan a turnaround strategy.

Chapter 7 bankruptcy can be utilized by both individuals (consumers) and businesses. Chapter 7 bankruptcy is the process where some or all of a debtor’s property may be sold to pay down debt. However, certain property is exempt from the bankruptcy proceedings (such as household items, cars, clothes, etc.). Exempt property is outlined in the federal bankruptcy statute. In exchange for the liquidation (voluntary sale of the debtor’s property), the debtor is relieved of most or all of their unsecured debts. Further, not all debt can be erased (such as certain student loans).

Chapter 13 bankruptcy is known as the “wage earner” bankruptcy because a person who files under this Chapter must have a reliable source of income that can be used to re-pay some portion of their debt. This is most commonly known for its re-payment terms (rather than an outright liquidation and discharge of debts). Chapter 13 bankruptcy is advantageous in the circumstance where an individual can benefit from restructuring their debt payments. A Chapter 13 bankruptcy is also advisable to a debtor who wishes to be relieved of a portion of their debt so that they can better manage other debt obligations.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your Chapter 7 or Chapter 13 bankruptcy matter.



Probate Litigation

Estate planning is the process of planning for the disposition of one’s assets to intended or specified beneficiaries. The ultimate result of estate planning is either Probate administration or assets passing outside of probate. For instance, all assets titled to one’s individual name will pass in accordance with the terms of the Last Will and Testament (without court supervision). Any assets titled to a revocable living trust pass outside of probate. Property titled jointly also passes outside of probate.

Probate litigation usually doesn’t begin long after a person passes and the Last Will and Testament is submitted to the court for probate. Probate litigation occurs within the formal probate administration and can arise for many reasons. The most common reasons for probate litigation are beneficiaries challenging the estate planning documents and/or power holders for undue duress, lack of capacity or breach of fiduciary duties by a personal representative and/or trustee.

Lack of capacity where a decedent was found not to have had the original capacity to execute a last will and testament. Undue duress often occurs with the elderly and involves a position of trust such as a non-familial caregiver named as the beneficiary of an estate a few days prior to that person’s death. In other words, the caregiver may have taken advantage of the weakening health or dementia of the deceased person in order to permeate themselves into a will to the detriment of the rightful heirs. Breach of fiduciary duty is known as any intentional fraud or negligence in the accounting or the distribution of estate and/or trust assets and/or the failure to safeguard estate assets reasonably and prudently.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your probate litigation and/or other legal needs.

Purpose of Incapacity Planning in Estate Planning

Incapacity planning plays a huge part in estate planning because most people become incapacitated before they pass away. Incapacity planning documents include the health care surrogate designation, living will and durable power of attorney. The health care surrogate designation appoints individuals who will make health-related decisions on your behalf. The living will states which life prolonging measures you prefer (or don’t prefer) your agents to take. The durable power of attorney appoints individuals who will make financial-related decisions on your behalf. In Florida, the financial power of attorney must be durable. In other words, it cannot “spring” into effectiveness upon incapacity. Other states, however, allow for the springing power of attorney. The durable power of attorney statute further dictates certain powers that must be separately initialed by you to be effective.

Most individuals don’t fully understand how important incapacity planning is in an estate plan. If you don’t plan for your incapacity, then you may subject your family and/or close friends to an expensive and time-consuming guardianship process. Where there are no documents stating agents for incapacity, agents must be appointed by the court. The guardianship process can easily cost thousands of dollars and can take months to even years with the clogged up court systems.

Even after a guardian is appointed, the court will continue to monitor the guardianship every year (pursuant to additional fees) and approve major actions and decisions made by the guardian(s). All this can be avoided by executing the above mentioned incapacity planning documents (health care surrogate designation, living will and durable power of attorney) along with your last will and testament.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your estate planning and/or probate needs.

Five Common Defenses in Foreclosure

Foreclosure is the process of a bank or lending institution taking possession of a mortgaged property as a result of the mortgagor’s failure to keep up with the mortgage payments. While unfortunate, you don’t have to give up your home to the bank without a fight. There are many foreclosure remedies or defenses available to you. The following are five common defenses that a foreclosure attorney can argue on your behalf:

  1. Failure of the Foreclosing Party to Prove the Existence of a Mortgage Document.

In order to foreclose a property, a lender must prove that they own the debt. This is often difficult for the foreclosing party to do if the mortgage has been sold and re-sold several times.

  1. Unfair Lending Practices.

If the original lender engaged in unfair lending practices, you may have a defense to your foreclosure. A lender engages in unfair lending practices when they commit a violation against federal or state law designed to protect debtors from such practices (such as the Truth in Lending Act, also known as “TILA”). TILA requires lenders to make certain disclosures in the mortgage documents regarding the lending arrangement.

  1. The Mortgage Servicer made a Serious Mistake.

You may be able to challenge the foreclosure based on mistakes your bank made. A few such mistakes include your bank: crediting payments to the wrong party, imposing excessive fees, or substantially overstating the amount you owe to reinstate the mortgage.

  1. Right to Rescind the Mortgage.

The right to rescind a mortgage is the borrower’s ability to retroactively cancel or rescind the loan under certain circumstances. One such circumstance is where the lender makes a material violation of TILA and/or other commits other unfair lending practices.

  1. Protection on “High-Cost” Loans.

Some states have protections for “high-cost” loans (where the annual percentage rate (“APR”) exceeds the applicable average prime offer rate). If your lender has made this violation, then you may be able to use this as a defense to your foreclosure.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your foreclosure defense needs.

Florida and Materiality of Breach Requirement

The elements of a breach of contract claim are well known to many individuals and business owners. These elements are as follows:

1) existence of a valid contract;

2) breach of that contract; and

3) damages as a result of that breach.

A traditional defense to a breach of contract claim is that the breach was a “minor” breach and not a “material breach”. A “material breach” goes to the heart of a contract, whereas a minor breach is much less severe. Generally, a minor breach is actionable, however, a plaintiff would not receive as much of a damage award. The caliber of breach was never an element of a breach of contract claim until Florida recently altered this through several cases that came before the court.

In 2000, the Florida district court injected the materiality requirement into the rational for its case holding without explanation (Abbott Labs v. GE Capital, 765 So. 2d 737, 740 (Fla. 5th DCA 2000). Many cases followed with references to the Abbot Labs case. Further, in June of 2013, another court announced that the elements of a breach of contract claim were “(1) a valid contract, (2) a material breach, and (3) damages” (Havens v. Coast Florida, P.A., 117 So. 3d 1179 (Fla. 2d DCA 2013)). Materiality requires proof that the breach goes “to the essence of the contract.” No other state requires such materiality for a party to recover from a breach of contract claim.

Such Florida case law created a fundamental problem in pursuing breach of contract claims, however, the requirement was not coded by statute. Therefore, each court must still determine the materiality requirement on its own based on the facts and circumstances of each particular case.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your business litigation and/or other legal needs.

Florida Homestead Protection

Florida is by far the best state for homestead protection, but do you really know what that means? Article X, Section 4 and Article VII, Section 7 of the Florida Constitution specify the parameters of the homestead exemption for Florida residents. A Florida resident is any person who lives in the state of Florida for six (6) or more months out of the year. In other words, Florida must be your primary residence and not a transient residence.

Article X, Section 4 is broken down into three sections. The first section protects a person’s primary home from the threats of outside creditors. To be protected the homestead property must be on no more than one-half (1/2) acres of contiguous land inside of a municipality and no more than one hundred and sixty (160) acres of contiguous land outside of a municipality. The valuation of the property is immaterial as the entire value of the homestead is protected. The second section states that the benefits will inure or benefit any surviving spouses of a homestead resident; therefore, the benefits survive a person’s death. The third section focuses more on internal threats and states that the Florida homestead is not subject to devise if the owner is survived by a spouse or minor child except the homestead may be devised to the owner’s spouse if there are no minor child. However, the property may be sold, but only if the spouse joins in the sale. This section essentially protects the homestead property from the outside and from the inside (whether from an outside creditor or a creditor within one’s familial structure).

Finally, the last benefit of the homestead exemption in Florida is essentially a tax break, which is provided for pursuant to Article VII, Section 7 of the Florida Constitution.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your estate planning and/or other legal needs.

Choosing the Right Business Entity

Protecting a great idea almost often includes incorporating your business idea with the state. Before you incorporate a business, you will need to know which business entity to choose. The general options include: the limited liability company, the partnership, the limited partnership, the C-corporation or the S-corporation. Also, remember that the limited liability company can be taxed as an S-corporation while affording the legal protections that other limited liability companies have. Choosing the right business entity is a tough decision, but knowing the advantages and disadvantages of each entity type can make the choice easier.

First, traditional partnerships generally are disfavored because each partner has unlimited liability with respect to all of the other partner’s actions. Limited partnerships are a better option, but should be used with caution, as there still needs to be a general partner who bears all of the responsibility of the partnership on their shoulders. Limited partners enjoy limited liability, but they do not enjoy any ability to contract partnership actions. If a limited partner tries to manage a limited partnership, then they may be converted into a general partner and therefore lose their “limited liability” protection. These entities are often used in cases where a person is seeking investors for their business and/or where there is some sort of asset protection plan (“family limited partnerships”).

Limited liability companies (“LLC”) and corporations are used more frequently for new entities than partnerships. Deciding between whether to use a limited liability company over a corporation depends on a number of factors. One factor is whether your company will go public (does the business plan include selling shares on the public stock market). If so, then you must use a C-corporation since that is the only entity that allows this action. If you have a small family business, an LLC may be more favorable over the corporation as there are fewer formalities that will have to be followed overall. Choosing a business entity is an important task and depends on the purpose of the business as well as other factors on a case-by-case basis.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your business law needs.




Digital Estate Planning

Digital estate planning has become more of a necessity in the past few years with the emergence of the Internet and growing online presence. Nowadays, almost every individual has at least one online account, whether it is social media, e-mail or online banking. Have you every asked yourself what will happen to these online accounts when you pass away? This is an important question to ask as many of these accounts have personal information and/or auto payments that will need to be administered along with other assets.

In general, your estate plan consists of your declaration of health care surrogate, living will, durable power of attorney, last will and testament and in some cases a revocable living trust. Digital estate planning assets consist of online accounts such as banking, Facebook and Twitter, credit cards and could even include online shopping accounts such as amazon. Failure to inventory these assets may lead to your estate incurring unauthorized charges after your death and/or make it extremely difficult for your personal representative to access such accounts.

By creating a digital estate plan, you can help your family by:

  • Locate any accounts you have online;
  • Access those accounts or the information in those accounts;
  • Safeguard online data from hackers;
  • Attach financial value to your digital property; and/or
  • Distribute and/or transfer any digital assets to designated beneficiaries parties.

The first step to creating a digital estate plan is to itemize all of your online accounts and then inventory usernames and passwords (including recovery password information). Remember that your e-mail is the center of most of your accounts; therefore, it is most important to inventory your e-mail credentials. Next, you must choose a safe place for such data. This could include a safety deposit box, a personal safe or submitting the information directly to your personal representative. Having this information documented will allow your estate to bypass the problems of accessing your online accounts and make the probate process easier.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your estate planning and/or probate needs.