General rules, as we are all too familiar, are privy to exceptions. A general rule concerning settlement agreements is that only parties to the settlement agreement are bound by its terms. Necessarily, there are instances wherein a party not in privity to a settlement agreement is nevertheless bound. One such instance is when an insurer disregards its duty to defend its insured. Read Full Post
Once the creditor obtains a decree from the court that the debtor made a fraudulent transfer, the creditor may collect on its claim under Florida’s Uniform Fraudulent Transfer Act (“FUFTA”), which provides creditors with various remedies. See Charles B. Jimerson’s blog post on the various remedies under FUFTA, Remedies for Creditors Under FUFTA Chapter 726 – Part I: Who May Be Liable. While the fundamental remedy under FUFTA is to set aside a fraudulent transfer, creditors may be entitled to compensatory damages as well. However, like all remedies under FUFTA, compensatory damages may be limited, or even unavailable, due to the equitable principles underlying the Act. Read Full Post
Starting a new business can be both incredibly exciting and substantially stressful, and many entrepreneurs hastily begin business without considering many important legal considerations in starting up. However, with legal guidance and proper planning, starting a new business can be easy, effortless (sort of), and smooth. Read Full Post
Service of process is likely an issue about which many attorneys and parties don’t give much thought; it’s a standard procedure conducted hundreds if not thousands of times a day across the country, and is usually done through a professional process server. However, when attorneys deviate from the standard procedure of sending a lawsuit to a process server and allowing them to effectuate service, whether due to cost or strategic considerations, it is easy to run afoul of the Florida and Federal Rules of Civil Procedure. Read Full Post
Elements of Proof for Fraudulent Transfers in Florida: How to Determine if a Transfer Was Fraudulent
Creditors may become frustrated when they discover a debtor has engaged in an unfair transaction that hampers their ability to collect payment. However, creditors are not without remedy in the event that there has been some funny business with the debtor’s finances. Regardless of the debtor’s intentions behind the questionable transaction, Florida’s Uniform Fraudulent Transfer Act (“FUFTA”) permits courts to set aside transfers that are either actually or constructively fraudulent. Of course, many creditors and attorneys are aware that FUFTA is a “powerful remedy.” See Brandon C. Meadow’s in-depth article, Are Florida’s Fraudulent Transfer Claims Subject to Equitable Tolling? Yet many Florida attorneys may be unaware that a transfer was fraudulent until it is too late. Therefore, Florida attorneys must acquire a thorough understanding of FUFTA in order to ensure their clients’ interests are fully protected. This article provides guidance on establishing a prima facie case for both actual and constructive fraud under FUFTA. Read Full Post
In a contingency case there are certain circumstances in which an attorney’s fee award can be increased through the use of a multiplier from 1.5 to 2.5. Recent cases have limited the applicability of the use of a multiplier in Florida. However, careful navigation of the current case law gives some guidance of the types of cases in which a multiplier is appropriate and in which a multiplier is not appropriate. Read Full Post
After entering a participation agreement, a once promising loan sometimes becomes a problem loan once the borrower defaults. Following default, both the lead and participating banks always assess collectability. If the parties find the borrower is uncollectible based upon changes in circumstances, flaws in the underwriting or borrower fraud, it leads business partners to evaluate their own relationship and the finger pointing often commences. Having purchased a worthless participation interest, the participating bank sometimes seeks creative ways to relieve itself from its obligations, despite the very one-sided terms that comprise most all participation agreements. The question we often get is, does a borrower’s fraud relieve the participant from its obligations in a participating agreement, particularly when the lead bank should have noticed the fraud in their underwriting? This article will discuss common theories of recovery used by participating banks in cases of borrower fraud, and how the likelihood of success for such claims is almost entirely determined by the express terms of the participation agreement. Read Full Post
On September 29, 2016 the Florida Supreme Court amended rules 4-1.1 and 6-10.3 to the Rules Regulating The Florida Bar. As a result, Florida attorneys will now be required to obtain 3 credit hours of CLE in approved technology programs. Further, language was added to the Comment to Rule 4.1.1 Competence, which reads as follows:
Competent representation may also involve the association or retention of a non-lawyer advisor of established technological competence in the field in question. Competent representation also involves safeguarding confidential information relating to the representation, including, but not limited to, electronic transmissions and communications.
What does this mean for litigators dealing with electronic evidence? I like to say that the realm of eDiscovery is a melding of legal and IT, two groups of professionals who speak different languages, and who under typical circumstances do not care to speak the language of the other. We have all heard that attorneys speak legalese, and we know of the “IT speak” that flies over the heads of IT industry outsiders. How can we manage the additional eDiscovery industry terminology that is a necessary part of the conversations between IT and legal that surround litigation or a government investigation? At the time of my entry into the field of eDiscovery in 2013, I had not even heard of the term metadata, much less jargon like DeNIST, TIFFing, load file, and so on. Read Full Post
Involuntary bankruptcy is a legal proceeding creditors may use to force a debtor into bankruptcy, rather than a debtor voluntarily seeking bankruptcy protection on his or her own behalf. Creditors seeking involuntary bankruptcy must file a petition in the bankruptcy court, and the debtor has the opportunity to defend against being forced into bankruptcy.
Involuntary petitions, even if ultimately dismissed, can have a powerfully negative impact on an alleged debtor. See In re Reid, 773 F.2d 945, 946 (7th Cir. 1985); In re Gills Creek Parkway Assocs., L.P., 194 B.R. 59, 64 (Bankr. D.S.C. 1995). Fortunately, alleged debtors are not without defense and remedy, and involuntary petitions can be just as harmful to creditors as they are to alleged debtors. See In re Global Energies, LLC, 763 F.3d 1341, 1350 (11th Cir. 2014). This is especially true in instances where courts grant damages and attorneys’ fees upon dismissal of an involuntary petition. This blog is Part 2 in a two-part series on defending against involuntary bankruptcies. Part 1 set forth the basics of an involuntary bankruptcy. This part expands on the arsenal of remedies and strategies for defending against an involuntary bankruptcy petition.
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Involuntary bankruptcy is a legal proceeding creditors may use to force a debtor into bankruptcy, rather than a debtor voluntarily seeking bankruptcy protection on its own behalf. Creditors seeking involuntary bankruptcy must file a petition in the bankruptcy court, and the debtor has the opportunity to defend against being forced into bankruptcy. This blog is Part 1 in a two-part series, and will set forth the basics of an involuntary bankruptcy. Part 2 provides tips and strategies for defending against an involuntary bankruptcy petition. Read Full Post