AUTO INSURANCE AND PERSONAL INJURY LAW (PART 2)

by Posted in Car Accidents, General, Personal Injury

In Florida, the required auto insurance coverage consists of Property Damage and Personal Injury Protection. Most people think they have “full coverage” on their insurance policy, but the term has created confusion as to what types of coverage are required in Florida. Many people also don’t know that Florida has some of the most lenient requirements for vehicle owners out of any state.

As a brief overview, Property Damage coverage will protect you by compensating the other driver for damage to his or her vehicle if you cause an accident. Here, however, we will discuss Personal Injury Protection. Personal Injury Protection (PIP) coverage will cover your medical bills after a car accident no matter whether the accident was your fault or the other person’s. Most people have $10,000.00 in PIP coverage that you can elect to use for either of two purposes. PIP will either cover 80% of your medical expenses or 60% of your lost wages up to $10,000.00. Most PIP policies contain a deductible of $500.00 or $1,000.00.

In the last few years, our State Congress has made many changes to the PIP statute. The insurance policies can now differentiate the PIP Policy limits depending of the seriousness of the injuries. The insurance companies are required to pay up to $10,000.00 of your medical expenses if a medical doctor determines that you have sustained an Emergency Medical Condition (“EMC”). If a doctor does not make that you have an “EMC” then the insurance company is only required to pay up to $2,500.00 of your medical expenses. PIP is mandatory in Florida and you cannot purchase auto insurance in the state without it. You can elect to purchase more than $10,000.00 in PIP

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your personal injury and/or insurance coverage matter.

Auto Insurance and Personal Injury Law (Part 1)

by Posted in General, Personal Injury

There is a lot that people need to know about auto insurance. Many people think they have “full coverage” on their insurance policy. This term has created confusion as to what types of coverage are required in Florida. Florida has some of the most liberal requirements for vehicle owners of any state. The only types of coverage required in Florida are Property Damage and Personal Injury Protection.

In this blog, we will discuss Property Damage. Property Damage coverage will protect you by compensating the other driver for damage to his or her vehicle if you cause an accident. Many people think Property Damage coverage will fix their vehicle as well. That is not the case. Florida requires a minimum of $10,000.00 in Property Damage coverage. If your car is worth more than $10,000.00, a driver carrying the minimum Property Damage coverage will not be able to fully compensate your loss. If this concerns you, you should discuss adding Collision coverage to your policy.

Collision coverage will repair your vehicle or compensate you in many circumstances; for example, if the other driver’s Property Damage Coverage cannot fully compensate you, or the other driver is uninsured, or you cause the accident.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your personal injury and/or insurance coverage matter.

Estate Planning Strategies to Avoid Probate Administration

by Posted in Estate Planning, General

Estate planning is the process of anticipating and arranging for the disposal of a person’s estate during their lifetime. Estate planning also involves appointing pre-determined power holders who will help you with making medical and/or financial related decisions in the event you become incapacitated.

The major advantage to planning your estate is probate avoidance, however, not all estate planning strategies automatically allow you to avoid probate. For instance, simply having a last will and testament may not give you probate avoidance. The court will have to supervise the distribution of assets to your beneficiaries. Trust planning usually does avoid probate, however, if you don’t re-title certain assets to your revocable living trust, then your estate may still have to be probated to some extent.

Another great probate avoidance strategy, outside of trust planning, includes naming payable on death beneficiaries on your financial accounts. Property titled in joint tenancy or tenancy by the entirety (marital ownership) also avoids probate. However, be careful when using joint tenancy or tenancy by the entirety as probate will be triggered on the second death.

Using a combination of the above-mentioned strategies is the best estate planning. For instance, you can have a full estate plan with a revocable living trust, hold certain property jointly and/or have payable on death beneficiaries for some or all of your financial accounts. The best strategy really depends on your particular situation, therefore, it is best to have an estate planning attorney determine which planning strategies you should use.

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

Waiting too long to File your Claim can Jeopardize your Personal Injury Award

by Posted in Car Accidents, General

If you have been in an accident or suffered a personal injury, you do not have an infinite amount of time to file your claim against the person responsible for your pain and suffering. This time period is called the statute of limitations and is set by state law. In Florida, you have four years from the date of the accident to file a lawsuit in Florida’s civil courts. That means, if you became injured and more than 4 years have passed since the injury, you may not be able to recover anything. Therefore, it is important to be proactive and retain an attorney immediately after you become injured.

Personal injury most often involves car accidents, however, can include: work place injuries, medical malpractice, slip and falls, trip and falls and certain property damage cases. There are four elements that must be met to recover under personal injury:

  1. person had a duty to act reasonably;
  2. the duty was breached;
  3. such breach caused damages; and
  4. the damages were directly caused by the breach.

With regard to apportioning fault, Florida follows the pure comparative negligence standard of recovery. Pure comparative negligence is a partial legal defense that reduces the amount of damages that a plaintiff can recover (in a personal injury claim) based upon their degree of fault. For example, if the jury finds that a plaintiff was 50% liable for their own injury, their damages award will be reduced by 50%. That means, if a plaintiff’s damages would amount to $1,000.00, the figure would be reduced by 50% or $500.00 – resulting in an award of only $500.00.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your personal injury matter.

Summary of Business Litigation and its Role in Today’s Legal System

by Posted in General

Litigation is the type of law refers to the rules and practices involving the resolution of disputes between two or more parties in the court system. Most people have heard of personal injury litigation as that is the most common type of lawsuit, but few people know that you can litigate over a business dispute. Most non-litigation matters, such as real property sales, estate planning, business formations, probate administration are handled by attorneys practicing “transactional” law. However, a client can certainly benefit from a lawyer who knows understands and can practice both transactional law and litigation. That way, you aren’t shuffled from lawyer to lawyer when your simple business transaction escalates to a business dispute. Business litigation is often referred to as commercial litigation.

Business litigation can stem from: a breach of contract, torts violation, dispute in a partnership, post closing dispute after a business sale, regulatory and investigations, privacy and cybersecurity, insurance disputes, bankruptcy and/or covenant’s not to compete. The point where the parties cannot resolve the matter themselves is when attorneys get involved to file lawsuits. Oftentimes, lawsuits are used to leverage the positions of one party over another. Litigation may not always be the best option for every matter. Litigation can become very costly, and if you lose, attorneys’ fees may have to be paid by you to the winning party.

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

 

Major Concerns Physicians must Recognize regarding using Asset Protection Planning in Place of Medical Malpractice Insurance

by Posted in Asset Protection, General

With the rising costs of insurance, most doctors have probably considered the option of going “bare” and using asset protection instead of insurance in order to protect assets from lawsuits. Or, you may already have this strategy in place. Going “bare” means that you, as a physician, elect not to carry medical malpractice insurance in your medical practice. Medical malpractice insurance protects you and/or your practice from medical malpractice lawsuits filed by your patients. While every physician should have an asset protection plan in place, doctors shouldn’t hastily cancel their medical malpractice insurance without understanding their responsibilities under Florida Statute 458.320, which applies to Florida licensed physicians. F.S. 458.320 outlines certain consequences for doctors who lose medical malpractice lawsuits while uninsured by medical malpractice insurance.

F.S. 458.320 states that if a doctor does not have medical malpractice insurance and loses a medical malpractice lawsuit, then that doctor will still have the responsibility to pay the claimant whether or not the assets are protected. Pursuant to this Florida statute, the doctor is required to pay the claimant either $100,000.00 or $250,000.00 if he loses a malpractice lawsuit (assuming that the judgment is over that amount). Specifically, the doctor has to pay the judgment creditor the lesser of the entire amount of the judgment with all accrued interest of either $100,000.00, if the physician is licensed but does not maintain hospital staff privileges, or $250,000.00, if the physician is licensed and maintains hospital staff privileges. Such payment must be made within thirty (30) days from the receipt of notice for payment from the Department of Health. If the doctor refuses to pay the judgment creditor (claimant) or fails to negotiate a payment plan, then the doctor can be sanctioned by the Department of Health. That means, even if a doctor has an iron clad asset protection plan, they may still be required to pay the judgment creditor some award or risk losing their medical license.

The statute also outlines an exception for payment that states that doctors can file an appeal within thirty (30) days of receiving the notice from the Department of Health. The doctor must send the Department of Health a Notice of Appeal prior to the expiration of thirty (30) days in order to postpone the requirement of such payment. Therefore, even if you have received a medical malpractice judgment against you, you still have options so long as you act quickly and contact a knowledgeable attorney timely.

Further, doctors should still implement asset protection planning even though this statute may require payment of claims, regardless. The reason for this is because lawsuits occur everyday and may not have anything to do with your practice of medicine. Having an asset protection plan deters most future potential creditors from suing you for frivolous claims. Every doctor should utilize the benefits of asset protection planning.

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

Lost Promissory Note Remedies in Foreclosure

by Posted in General

Many people wonder what happens when you are a defendant in a foreclosure proceeding and the lender has lost the promissory note or other instrument signed by you securing the debt obligation. This occurs very often in today’s day and age due to banks selling and re-selling loans over and over. If your lender has lost your promissory note, you may be able to receive foreclosure relief prior to foreclosure or even at an appeal.

In Florida, when lenders lose promissory notes they must prove the requirements of Florida Statute 673.3091 in order to “re-establish” the lost note. Specifically, to re-establish a lost promissory note pursuant to Florida law a lender must prove the following:

  1. The plaintiff seeking to enforce the promissory note had standing to enforce such instrument when loss of possession occurred (or) the plaintiff acquired the note from a lender who had such standing;
  2. The loss was not a result of the actual transfer of the promissory note or a lawful seizure of the promissory note; and
  3. The plaintiff cannot reasonably obtain possession of the promissory note because the instrument was destroyed, its location cannot be determined, or it is in the wrongful possession of an unknown person or a person cannot be found or that person cannot be served.

If the lender cannot prove all of the above, then you may have grounds to invalidate the foreclosure.

Further, a recent Florida foreclosure appeal case reversed a judgment against a defendant because the plaintiff did not establish the requirements of Florida Statute 673.3091 (Jason P. Seidler and Melissa C. Seidler, Appellants, v. Wells Fargo Bank, N.A., Successor by Merger to Wachovia Bank, N.A., Appellee, Case No. 1D14-2569 (Fla. 1st DCA 2015)). In this case, the appellee (Wells Fargo Bank, N.A.) succeeded to a promissory note due to their merge with Wachovia Bank, N.A. In 2008, Wachovia filed a complaint to re-establish a lost promissory note and attached a three page promissory note as an exhibit which was signed on page three by Jason P. Seidler, but undated. No endorsement or other indication of negotiation appeared on this copy of page three. At trial, Wells Fargo Bank submitted a copy of the promissory note that was different than what Wachovia Bank had originally submitted in 2008. Specifically, page three of the promissory note contained an endorsement in blank dated August 18, 2006 (which was dated two years prior to Wachovia Bank’s complaint alleging the lost note). The trial court allowed such evidence to be admitted and this became the grounds for the Seidler’s appeal. After reviewing the evidence, the appellate court concluded that the evidence Wells Fargo Bank submitted during trial was insufficient to prove standing to enforce the note on the date the complaint was filed. Further, the discrepancy between the promissory note submitted with the complaint and the promissory note submitted at trial further failed to prove that Wachovia Bank possessed the promissory note, as indorsed, on December 16, 2008. Therefore, the case was reversed in favor of the Jason P. Seidler and Melissa C. Seidler.

If your lender has lost your mortgage and/or promissory note (or any part of the instrument), you should obtain a complimentary consultation with The Noble Law Firm, P.A. to establish your rights and options to defend your foreclosure.

Understanding why Fraudulent Transfer is NOT a Criminal Offense

by Posted in Asset Protection, General

Fraudulent transfer is a civil remedy creditors use to reach assets that were transferred after a creditor threat for the purpose of hiding or concealment of such assets. To commit a fraudulent transfer you must have the intent to defraud or delay creditors in obtaining your assets in satisfaction of a civil judgment against you. Fraudulent transfer is a civil remedy, not a crime. The basis of fraudulent transfer is that you have transferred assets after you have received a judgment against you.

One common misconception in a fraudulent transfer claim is that you may be subject to penalties similar to those of criminal fraud (which include fines and/or imprisonment). We cannot stress enough how untrue this misconception is and that fraudulent transfer is strictly a civil remedy. Criminal fraud involves actions such as mail fraud, stealing identities, counterfeiting, bank fraud, tax evasion, embezzlement and bankruptcy fraud. Fraudulent transfer laws only allow a creditor to take advantage of civil remedies that primarily include the return of assets in the event the creditor wins their case. In other words, there are almost no circumstances that will deem you to be held criminally liable for protecting your assets from creditors; however, you still should understand how to do it correctly.

The best way to protect assets from creditors is to be proactive. That means the assets should not be under duress or subject to an imminent or current creditor attack. However, even if you are in a lawsuit, our attorneys can still protect your assets as the only cause of action your creditor can pursue is fraudulent transfer, which is only a civil remedy. The best asset protection strategy is being proactive, but you still have many options if you already have a creditor attack.

Contact the Attorneys of The Noble Law Firm, P.A. to discuss how to legally and ethically protect your assets.

Formal Probate Administration

by Posted in General, Probate

Probate administration is the process of passing one’s assets to family members (also referred to as beneficiaries). If an individual passes away with probate assets exceeding $75,000, their estate must be administrated formally.

Formal probate administration requires the filing of many documents with the court. The personal representative (or executor) may also retain a law firm to file the probate documents on their behalf. The personal representative must first file a Petition with the court asking to open the estate and for the formal permission to administer the estate. Proof that such individual is the correct personal representative is contained in the last will and testament and is submitted along with the Petition. If the court finds sufficient authority, letters of administration are issued to the personal representative. The letters of administration are used to prove an individual’s authority to administer an estate to third parties.

The personal representative must collect the assets of the estate and keep them safeguarded throughout the duration of the probate administration (this may include running a decedent’s business). The personal representative is required to notify all potential creditors that a probate has been opened and give them sufficient time to file a creditor claim for payment. If a creditor files a claim, the personal representative can either object to the claim or pay the claim. There may also be negotiations with creditors to lower the total payout in exchange for the release of the creditor claim.

Prior to closing an estate, the personal representative must present the court and the beneficiaries with an inventory of the assets and an accurate accounting. Once all of the creditors have been paid or have waived their claims, a Petition to close the estate must be submitted to the court. Upon the court’s order, a distribution of assets to beneficiaries occurs.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with minimizing your probate assets or with the probate administration of a loved one’s estate.

Using Belize Trusts for Asset Protection Planning

by Posted in Asset Protection, General

If you are interested in protecting assets internationally, the Belize Trust may be the right option for you. Belize is a country on the east coast of central America that has incredibly debtor friendly laws. That is why the Belize trust is one of the most favored tools in asset protection planning.

A trust is an estate planning tool by which a settlor (or grantor) creates a document that appoints a trustee to handle and distribute assets to specific beneficiaries at their death. During the life of the settlor the trustee may also support the settlor and/or beneficiaries. A trust protector may also be appointed in certain circumstances (almost always in international trust planning). The trust protector provides a check and balances system whereby the trustee cannot make certain decisions without obtaining the trust protector’s written approval. Once the settlor executes the trust and the trustee accepts the terms, the next step is funding. You may fund the trust with any tangible asset (i.e.: bank accounts, cash, savings accounts, brokerage accounts, life insurance, retirement benefits, etc.).

A trust can be set up in a variety of jurisdictions. Domestic trusts are usually set up in the state where the settlor lives. Jurisdictions like Florida oftentimes have more favorable trust laws, while other states have less favorable trust laws. However, International trusts offer greater asset protection benefits since the United States does not have jurisdiction over the assets.

International trust jurisdictions are not all created equal. Some countries, such as Belize, offer much more favorable debtor protections than other countries. For instance, Belize update their legislation regularly to keep up with the changing laws of the United States and other countries. Belize also allows the use of other banking jurisdictions to hold assets. The favorable laws of Belize make it a preferred international trust jurisdiction.

Belize offers several asset protection advantages. Belize trusts are extremely flexible and allow you to draft many asset protection clauses into the trust agreement. The courts in Belize does not recognize judgments from courts outside of the country; therefore, a debtor has to re-litigate the case in Belize using local counsel. The creditor must also post a bond prior to litigating in Belize. This can become costly and burdensome and certainly can be used as a deterrent against a creditor attack. The taxation laws in Belize are also very favorable since Belize does not impose any taxes on the trust, or the income earned by the trust over time.

Further, Belize does not have a vesting period or waiting period for assets to become protected once they are funded into a Belize trust. Therefore, a creditor cannot file a cause of action against you for fraudulent transfer. No vesting period means that assets moved into a Belize trust are automatically protected from creditor threats [no statute of limitations for creditors to file a fraudulent transfer action]. There are no other international jurisdictions with comparable laws.

Contact the Attorneys of The Noble Law Firm, P.A. to discuss whether international trust planning using the Belize trust is a good option for you.