Monthly Archives: July 2013

Collecting Accounts Receivable Part VI: Garnishing A Debtor’s Employer for Salary or Wages

This Blog is Part VI in a series of Blogs designed to provide business owners with a high-level overview of the legal process for collecting on past-due accounts receivables. Specifically, Part VI focuses on garnishing a debtor’s employer for a portion of the debtor’s salary or wages in order to satisfy the outstanding judgment debt. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas: ,

Collecting Accounts Receivable Part V: Garnishing A Debtor’s Assets

This Blog is Part V in a series of Blogs designed to provide business owners with a high-level overview of the legal process for collecting on past-due accounts receivables. Specifically, Part V focuses on garnishing a debtor’s bank accounts in order to satisfy the outstanding judgment debt. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas: ,

Collectability of Condominium Assessments Pre- and Post-Petition in Bankruptcy

It is common knowledge that when a company or individual files for bankruptcy, all collection activity stops. What is commonly not known is that condominium assessments are, in a manner of speaking, exempt from that rule. The fact is, all collection activity does not have to stop and you can still recover assessments that come due after the bankruptcy action is filed. Let’s read on to see exactly how all this works. Read Full Post

CATEGORY: Florida Condominium Law Blog Practice Areas: , ,

Implied Warranties In Florida: Essential Services

On July 11, 2013, the Florida Supreme Court adopted the “essential services” test in determining whether the implied warranty of fitness and merchantability applies to improvements such as infrastructure, drainage systems, retention ponds, and underground pipes. Maronda Homes, Inc. of Florida v. Lakeview Reserve Homeowners Association, Inc., 38 Fla. L. Weekly S 573. In deciding the case, the Florida Supreme Court resolved a split of authority between two Florida appellate courts, and addressed a recently-adopted Florida statute dealing with such improvements. Compare Port Sewall Harbor & Tennis Club Owners Association, Inc. v. First Federal Savings & Loan Association of Martin County, 463 So. 2d 530 (Fla. 4th DCA 1985) with Lakeview Reserve Homeowners v. Maronda Homes, Inc., 48 So. 3d 902 (Fla. 5th DCA 2010); § 553.835, Fla. Stat. While the Court’s ruling is subject to rehearing motion (and, therefore, not yet final), it is an important holding that could significantly affect Florida’s construction and design industry. Read Full Post

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Collecting Accounts Receivable Part IV: Post-Judgment Discovery

This Blog is Part IV in a series of Blogs designed to provide business owners with a high-level overview of the legal process for collecting on past-due accounts receivables. Specifically, Part IV focuses on various methods of post-judgment discovery that a creditor can use for locating assets of the debtor to satisfy the judgment. Read Full Post

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Florida-Friendly Landscaping Law

In 2009, the Florida Legislature changed an existing law that was aimed to encourage “Florida-Friendly” landscaping in communities governed by homeowner associations. Under the State Water Resource Plan each water management district is required to design and implement an incentive program to encourage all local governments to adopt new ordinances requiring Florida-Friendly landscaping. Read Full Post

CATEGORY: Florida Condominium Law Blog, Florida Construction Industry Law Blog Practice Areas: , ,

What are the repercussions for failing to give the condo owner the required thirty-day notice, pursuant to Fla. Statute 718.121(4), prior to filing a Claim of Lien?

Section 718.121(4), Florida Statutes, requires a condo association to provide a delinquent condo owner with a Notice of Intent to File a Lien, along with a thirty-day notice, prior to filing a Claim of Lien. Section 718.121(4) was added to the Florida Statutes in July 2008, becoming effective at that time. Since that section was added, there has been no case law involving a violation of that specific section of the statute. However, there are statutory protections that a condo owner has, and there is case law regarding the consequences for a lienor for not following the proper procedures for filing a Claim of Lien. In sum, if the statutory lien process is not followed strictly, the lien will be invalidated. Practically, if a required thirty day notice is not provided prior to filing the condominium assessment claim of lien, the condominium owner can file a “Notice of Contest of Lien” pursuant to Section 718.116(5)(c), Florida Statutes, to have the lien invalidated. If the lien is invalidated, the Condominium Association must start the process anew. Read Full Post

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When does a Purchase Money Security Interest trump an existing UCC-1 blanket asset lien?

When a Purchase Money Security Interest (PMSI) trumps an existing UCC-1 blanket asset lien depends upon whether the creditor perfected its PMSI during the required time period under Florida law in order to receive priority status over previously recorded blanket liens. Under Florida law, that priority period is within twenty days of the collateral being delivered to the debtor. Fla. Stat. § 679.324(1) (2012). If the creditor fails to perfect its PMSI during the statutorily provided period, it cannot gain priority status over another creditor’s previously perfected blanket security interest. In re Alphatech Systems, Inc., 317 F.3d 1267, 1269 (11th Cir. 2003). This Blog post seeks to analyze those circumstances where a lender seeks to prime an existing UCC-1 with their PMSI. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas: ,

A valid Independent Contractor Agreement does not necessarily exempt employers from wage claims

In the face of wage claims under section 448.110, Florida Statutes, the existence of an independent contractor agreement not always dispositive in classifying an individual as an independent contractor or an employee for the purpose of a wage dispute. Courts consider a number of factors when deciding whether an individual qualifies as either an employee or independent contractor under section 448.110, and the existence of an independent contractor agreement is not dispositive, nor given much weight, in this decision. Read Full Post

CATEGORY: Florida Business Litigation Blog, Florida Construction Industry Law Blog Practice Areas:

Appointment of Receivers in debt collection: A brief overview of pro’s and con’s

Very often in a debt collection action, whether a breached contract, defaulted secured note or otherwise, there will be a debtor who is trying to deplete corporate assets (frequently real property) before the inevitable judgment can be rendered. Sometimes depletion isn’t intentional, it is just a byproduct of the business judgment issues that created the problem in the first place. In those circumstances where assets are being wasted, and many more, creditors should consider seeking the appointment of a state court receiver. Receivers can serve as watchdogs for the business, ensuring that status quo is maintained so that the creditors are able to recover whatever assets may remain with an orderly liquidation. In the matters we handle for lenders (and other creditors), receivers come in very handy in the active management of the collateral properties. Appointment of receivers is not a remedy for every case, however, as it often has just as many challenges associated as it does benefits. This Blog post seeks to explore those benefits and drawbacks. Read Full Post

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