Legal Forum

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I’ve been Injured in an Auto Accident, should I Sue Immediately?

After the pain and confusion of being in a car crash, or of being injured in some way, people often seek legal counsel immediately. But when they speak with the attorney, they are advised to seek medical care first before any lawsuit begins. Why?

Injured parties should always all a lawyer right away, but any potential lawsuit will be based on the totality of the medical record. If a person has only just begun to receive treatment for their auto collision injuries, the medical record will not be complete enough to indicate the full extent of their injuries and the degree to which recovery is possible. Additionally, medical complications may arise later that need to be considered before any settlement is arranged.

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Injured in an Auto Accident, but No Attorney Wants the Case… Why?

One of the most common questions from prospective clients is why other attorneys chose not to represent them on an injury or auto accident case.

People say, “I was in a car crash or I was injured and I went to see an attorney and they didn’t take my case. Why?”

It could be that the damages suffered by the prospective client in the collision were not enough to justify a lawsuit. Or, it might be that neither party had sufficient insurance to make the case worthwhile, although there were significant injuries. These are just two of the most common reasons a lawyer might decline a case.

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FL Bankruptcy: Claim Homestead Exemption & Protect Less Personal Property…Or Lose Your Home?

In Florida, when people file a bankruptcy, they can either elect NOT to claim homestead exemption on their home and utilize up to $5000 of wild card exemptions on personal property, OR they can claim homestead exemption, protect their interest in their home, and opt for only $1000 of wild card exemptions on personal property. For the lucky few who have equity in their home, the choice is obvious: protect up to $125,000 of home equity and surrender other personal property that exceeds $1000.00 (speak with a bankruptcy attorney for more details on retirement funds, autos, and other types of personal property that may be protected).

These days, however, many people are in homes that have no equity. They owe more than the homes are worth. Many of these people continue to live in their “underwater” or “upside down” homes, and many are still making payments. Others are not making payments, but continue to reside at their home while seeking a modification or going through foreclosure.

When such people file a bankruptcy, should they elect to utilize the homestead exemption to protect non-existent home equity, or should they opt for $5000 in personal property and not exempt their homestead? For a long time, Floridians with no equity could take the $5000 in personal property exemptions, not exempt the home, but not fear that they would lose the home to the trustee in the bankruptcy. Sadly, those days are over.

When a bankruptcy is filed, the trustee becomes the owner of non-exempt assets of the debtor. Recently, the trustees have found that they are able to sell their interest in a property (sometimes referred to as “bare title”) to investors that rent out the home while lengthy foreclosure proceedings linger in the court systems. Eventually these investors lose the home back to the bank that holds a note against the property–but not before they’ve rented it out for a profit for months. That means that people who are planning to stay in their homes, even if there is no equity, need to claim homestead exemption and protect their right to live in the property–otherwise they may be evicted and their home rented for the benefit of an investor. That means that bankruptcy filers claiming the homestead exemption will only be given up to $1000.00 of  wild card exemption to exempt other personal property, with an additional $1000 that may be used to exempt an auto. Retirement accounts are 100% protected.

Be sure to speak with a bankruptcy attorney prior to filing your case, so that you know what assets may be at risk if you file.

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Hoping to Modify Your Home Mortgage? Watch Out for these Predatory Bank Practices…

This month, the Securities Exchange Commission charged top former executives at Mortgage giants Fannie Mae and Freddie Mac with securities fraud for making false statements about the quality their massive loan holdings. Read more about the civil fraud suits here. While many are relieved to see the federal government finally holding people accountable, many wonder when the government will stand up to help Americans keep their homes, or pay for student loans after their livelihoods were destroyed by systematic financial industry fraud, and the resulting destruction of millions of jobs.

The blog Mandelman Matters has reported that an employee of Chase’s mortgage servicing company described his job as, “making borrowers jump through every hoop so that when something fails to get done on time, they can deny it and foreclose.”

The employee, identified only as “Jared,” said that his boss said, “We’re in the foreclosure business, not the modification business.”

According to the Chase mortgage servicing company employee, “Foreclosures are a no lose proposition for the servicers… The servicer gets paid more to service a delinquent loan, and they get to tack on extra charges. If the borrower reinstates, which is rare, then the borrower pays the extra fees. If the borrower loses the house then the investor pays them. Either way, the services gets their money.”

Perhaps this explains why so many borrowers were told that modification would only be available only if they missed several payments. Yet, when people followed the directions they had been given, and applied for the modification, they instead faced foreclosure.

Researcher Matt Stoller with the Franklin and Eleanor Roosevelt Foundation reports on another angle of the corrupt mortgage servicing industry: a payment computer program that improperly applies payments first to mortgage servicing costs instead of to interest and principal. Home loans specify that payments be applied first to interest, then principal, and then to all other fees. Yet the program used by the servicer routinely applies payments first to fees.

In other words the banks have intentionally installed computer programs that apply payments systematically in ways that violate the very contracts they are enforcing via foreclosure, but which lead to greater profit for so called “mortgage servicing.” Read more about this systematic and predatory bank practice here. The practice was identified by Judge Elizabeth Magner in the the Louisiana foreclosure case, Jones v. Wells Fargo.

Has this happened to you or anyone you know?

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Software on Most Smart Phones Records Every Text Sent, Every URL Visited…Basically Everything the Phone Does is Recorded

About a month ago people learned that smart phones record and transmit data about their users. Only now, some investigators are reporting here that data collected by Carrier IQ, people’s most personal and intimate information, is being collected by law enforcement.

Off the record, some have indicated that law enforcement authorities are even able to remotely turn any cell phone on or off, or operate other features, such as the camera or video equipment. With the phone turned on, police are able to locate a cell phone customer by triangulating the nearest cell phone towers and essentially flushing them out.

With the Carrier IQ software, smart phones record and transmit every website a mobile phone user visits, every text they send. According to AT&T and other providers, it helps them know where calls are dropped, where the cellular network is weak, whether batteries are working properly, and other problems that happen systematically across the network. Firms like AT&T, Sprint, and others claim that the information is transmitted in an anonymous manner that allows the firm to compile metrics on network health, not personal files on each mobile phone user.

Needless to say, there are some obvious privacy concerns where everything a phone does is transmitted to a huge multinational firm with endless hard drive space. Animals that are tagged by researchers with radio collars may live more private lives than most Americans at this point.

From a legal perspective, people should use caution when using their phones. Avoid visiting websites or utilizing files on your phone that you would not want other people to know about. Privacy in America is increasingly just a fantasy.

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Occupy Protesters Shut Down a Brooklyn, New York Foreclosure Auction… Could it happen in Florida?

Most people have heard of the protests against bank corruption and corporate greed in New York City, Chicago, Washington, D.C., Denver, Houston, San Diego, and Orlando, Florida.

Believing that banks have corrupted the proper functioning of government, protesters have taken their concerns about the economic crisis directly to banks and banking officials. On October, 13th, 2011, community members in Brooklyn shut down a foreclosure auction to prevent the loss of housing to more American families in their community.

Watch the video here.

Could protesters disrupt auction in Melbourne, FL, Palm Bay, FL or Deland, FL?

Do you have thoughts or comments? Please share them.

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Defendant Appeals Guilty Verdict, Raises Self Defense…but what is an Appeal?

OK, so you’ve lost your criminal defense trial and now you want to appeal… What does that mean?

Recently, I was made aware of a criminal case in central Florida involving a young man accused of murdering his ex-girlfriend. Essentially, the defendant’s ex-girlfriend came to his home and, after a fight, hit him in the head with a hammer. She broke his skull and seriously injured him. According to the defendant, he managed to seize the hammer and defend himself, killing her. The defendant was charged with 2nd degree murder and went to trial. He was found guilty and sentenced to life in jail. He is now appealing the verdict against him. His family and friends are working to help him develop the case for appeal.

For many people, it would be the ultimate nightmare: something bad happens, the police come, an arrest occurs, and one is taken to jail. Later, perhaps, a bond is posted, but there is still the matter of the pending charges.

For many defendants, a pre-arranged punishment in the form of a plea agreement is the means of resolving the matter. The plea might involve merely a fine, or perhaps probation and community service, or in the case of a serious charge, an agreed jail sentence.

Others opt for a trial and fight the charges. Such people feel that that they are innocent, or at least the case cannot be proven beyond a reasonable doubt. They elect to have a trial and let a jury decide the outcome. If they win the case (on all charges), then they go home. If they lose, a judge sentences them according to his discretion and/or statutory requirements.

When defendants lose a trial and are sentenced, many will consider whether an appeal would give them some relief.

However, there are many misconceptions about what an appeal really is. First of all, appealing a verdict, in most cases, does not mean that the entire trial will occur again. An appeal must be based on an error of law by the judge, improper behavior by the attorneys or the jury, or some problem with the legal procedures that occurred in the case. If the judge followed all the laws and used his discretion within permissible bounds, and if the prosecution, defense, and jury members acted appropriately, there is not much chance of an appeal prevailing.

Examples of cases overturned on appeal might include: whether evidence was admitted, when it shouldn’t have been–perhaps causing improper bias within the jury, or where the evidence was collected by the police in violation of the US Constitution. Where a prosecutor trashes the defense attorney or makes improper personal attacks that have nothing to do with the case. Where a judge errs in ruling for or against objections to testimony. These are examples of issues raised in appeals.

Sometimes a trial is so riddled with errors that an appellate court will ask for the whole case to be retried. Often however, appellate courts rule that although an error occurred, it was not a material or substantive error to the extent that it would have affected the overall outcome in the case. Most appeals are denied.

Do you have questions about a criminal charges in Melbourne, Florida? Questions about a Palm Bay, FL trial? Is your family member facing a trial in Deltona, Florida, Orange City, Florida, or Deland, Florida? Please contact Morgan Law, P.A. at (321) 253-6223 or (386) 218-4973.

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Why File a Palm Bay, FL Bankruptcy? Why Seek Bankruptcy Protection? Just Keep on Going and Hope for the Best?

For many people, the word “bankruptcy” has an ugly connotation. It is something to be avoided at all costs. However, filing bankruptcy is actually a way to recover from financial problems. After all, no one files for bankruptcy if they are able to pay their bills–so what is the purpose of doing it? Bankruptcy allows people to escape old debt and start over.

Many people have fallen on a variety of old bills, whether they are credit cards, old business loans, medical bills, or even creditor financial judgments. Year after year, they limp along, paying what they can–with their credit in a permanent state of wreckage. Essentially, they have already defaulted on their creditors–not because they don’t want to pay, but because they don’t have the money to pay.

One of the worst hit areas is Palm Bay, Florida. For many years, it was one of the fastest growing cities in Florida. A lot of Palm Bay, FL residents bought houses and worked in construction, real estate, and other supporting industries. Then the bottom fell out. A lot of hard working people could no longer pay their debts. I remember tracking phone calls of prospective bankruptcy filers and realizing that nine different households on the same Palm Bay, FL street had called for advice about overwhelming unpaid bills. That was all in a two month period.

If the entire street is unable to pay their bills, it means that people should look beyond the personal shame of needing to consider a bankruptcy, and think about what a bankruptcy really is: start fresh and wipe away old debts. With a bankruptcy, people can wipe away credit card debts, medical bills, bad mortgages, foreclosure debt–and start over. After a bankruptcy, people finally have the chance to rebuild their credit and build their savings. When people don’t file a bankruptcy, yet are unable to pay their bills, their credit NEVER recovers. When they are able to save, pay off their cars, and so on, their old creditors always loom in the background, ready to strike with a lawsuit, garnish wages, freeze bank accounts, and so forth.

Filing a bankruptcy allows people to focus on their future and not worry about financial threats from the past. Do you live in Palm Bay, Florida and have questions about foreclosure, bad debts, creditor lawsuits, or garnishment? Please call us at Morgan Law, P.A., a Palm Bay, FL bankruptcy and foreclosure defense firm. We can be reached at 321-253-6223.

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If I File a Bankruptcy, Will They Take All of My Property?

One of the most common fears people have about filing a bankruptcy is that all their possessions will be sold in an auction and creditors paid with the proceeds.

The truth is that although bankruptcy is a legal process that occurs in the federal court system, state laws control what types of property and how much is protected when a bankruptcy is filed.

In other words, if you have lived in a state for more than the past two and a half years, the laws of that state will control what property is protected and which assets may be at risk. If you have not lived in your state for at least the past two and a half years, the laws of the state where you previously resided will typically be applied.

Different states have different strategies regarding what should be protected in a bankruptcy.

In Florida, homestead equity is given great protection. Retirement accounts are protected. Other types of personal property are protected to a dollar value of $1000.00 per person, with an additional value of $1000.00 available to protect equity in a car. If a person is not claiming the homestead exemption, an additional $4000.00 is available to protect personal property.

So a couple filing a Florida bankruptcy that has no equity in their home might be able to protect up to $12,000 of auto equity and other personal property, if they are filing jointly, and depending on whether autos are jointly owned.

Thinking of filing a Melbourne, FL bankruptcy? Considering a Deltona, FL bankruptcy? Call (321) 253-6223 or (386) 218-4973 for a free consultation! Visit us in Melbourne, Florida at SpaceCoastBankruptcy.com. Visit us in Orange City, FL and Deltona, FL at VolusiaBankruptcyLaw.com.

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Seizure of Property by Brevard Police Agencies Leads to Additional Revenue, but Some have Questions

When many people think of forfeiture of property to the police or the authorities, they imagine large mansions on Biscayne Bay in Miami being auctioned after Miami Vice has arrested a drug lord.

However, local attorneys say that police in Melbourne, Florida and law enforcement in Palm Bay have been systematically seizing property on a much smaller scale to help fund their operations. Florida Today reported on the forfeiture in this article

One local attorney said that a Palm Bay woman’s car was seized after her son was arrested in Palm Bay, Florida for driving on a suspended license for the second time in her car. At the time of his arrest, the car was seized by the Palm Bay Police Department, and she received a letter from Palm Bay PD saying she would not get it back unless she filed an appeal of the seizure. Her car was unavailable for approximately a month and she struggled to pay bond to get her son out of Brevard County Jail and to hire an attorney to defend him and to appeal the seizure of her car.

Fortunately, the Palm Bay woman was able to get her vehicle back, and it was not auctioned.

All of this stemmed from some unpaid tickets that her unemployed son had been unable to pay.

Some people in Melbourne, Viera, Rockledge, Palm Bay and other Brevard communities view this phenomena as a symptom of an overgrown law enforcement complex that is oriented against the little guy while ignoring the financial crimes that have lead to so many problems across Florida and nationally. Essentially, it is easier for police agencies to drive around running people’s tags, writing traffic tickets, and running k-9 units around people’s cars then to track what is happening at banks, insurance companies, Wall Street, and so on.

Others think the level of law enforcement is appropriate at the local level, but recognize that there has simply not been any enforcement within the halls of power.

What do you think?