Monthly Archives: August 2010

The penalties for passing a bad check in Florida

By Charles B. Jimerson, Esq.

As the economy continues to tank and dead beat debtors begin to pass more and more bad checks, I have found it to be a prudent time to revisit the laws pertaining to writing bad checks in Florida. In general, the term ‘check’ means a draft, other than a documentary draft, payable on demand and drawn on a bank or a cashier’s check or teller’s check. An instrument may be a check even though it is described by another term, such as ‘money order.’ Fla. Stat. § 673.1041(6). A ‘draft,’ in reference to a check, is a three-party instrument by which the drawer order the drawee to pay money to the payee, and the drawee is a bank.

Fla. Stat. §68.065 (for civil actions to collect worthless checks, drafts, or orders of payment) allows for recovery of treble damages, service charges, attorneys’ fees, and costs if its provisions are not followed. Before litigation is initiated, the form of notice set forth in Fla. Stat. §68.065 must be delivered by certified or registered mail, or by first-class mail, evidenced by an affidavit of service of mail, to the maker or drawer of the check, draft, or order of payment. If notice is properly provided, the maker or drawer will be liable to the payee for, in addition to the amount owing on the check, damages of triple the amount owing, a statutory service charge based on the check amount, reasonable attorneys’ fees, and court costs. If the notice is sent via certified mail and the recipient refuses to claim the notice or sign the postal receipt, the statutory notice requirement is satisfied. Read Full Post

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Considerations in Foreclosing SBA 504 Mortgages

By: Charles B. Jimerson, Esq.

Overview of typical SBA 504 transactions

Banks and other lending institutions offer a number of US Small Business Administration (“SBA”) guaranteed loan programs to assist the development of small businesses. While the SBA itself does not make loans, it does guarantee loans made to small businesses by private and other institutions. Specifically, the US SBA 504 loan or Certified Development Company (“CDC”) program is designed to provide financing for the purchase of fixed assets, which usually means real estate, buildings and machinery, at below market rates. The 504 Program cannot be used for working capital or inventory, consolidating or repaying debt, or refinancing. The SBA 504 program works by distributing the loan among three parties. Typically, a 504 project includes… Read Full Post

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Business Judgment Rule – Shielding the Corporate Director from Personal Liability and Considerations of Efficient and Financially Reasonable Resolutions

When making business decisions on behalf of a corporation, it is presumed that corporate directors act in compliance with the above-referenced statute, by acting on an informed basis, in good faith and with ordinary care. This presumption is judicially created and is known as the business judgment rule. The business judgment rule is based on the premise that directors, for the most part, are more capable of making business decisions than are judges. Thus, where the rule is applicable, corporate directors will not be held liable for decisions made when conducting the business and affairs of a corporation.

Florida case law provides four elements which must be present for the business judgment rule to act as a shield to director liability: (a) the decision under review must be a business decision; (b) the director must not receive a personal benefit from the transaction ; (c) the director must exercise due care; and (d) the director must exercise good faith. F.D.I.C. v. Stahl, 854 F. Supp. 1565, 1570-1571 (S.D. Fla. 1994).

Therefore, the business judgment rule only protects directors only when they are carrying out their duties as directors, (e.g., making decisions and analyzing issues as directors). The business judgment rule is also inapplicable when the director furthers his self-interest. “A director is considered interested where he or she will receive a personal financial benefit from a transaction that is not equally shared by the stockholders, or will suffer a detrimental impact from the proposed transaction.” McCabe v. Foley, 424 F. Supp. 1315 (M.D. Fla. 2006). Read Full Post

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Recent Changes in Florida Condominium Law Effective July 1, 2010

by Harry M. Wilson, IV

The following is a brief summary of some of the legislation included in Senate Bill 1196 which was signed into law on June 1, 2010 by Governor Charlie Crist. S.B. 1196 amends portions of Chapter 718 (the Condominium Act) and the new provisions portend changes for condominium unit owners and associations alike. The changes were made effective July 1, 2010 and include the following: Read Full Post

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