Posted in Business & Corporate Law

Eleven states, including Florida, have laws that prohibit businesses from imposing consumers with surcharges on credit card transactions.  But what type of businesses are subject to this prohibition?  All businesses?  Only merchants and retailers?  Currently, the concept of charging surcharge or convenience fees for credit card usage by service business is not clearly addressed in the applicable statute.  Florida Statute Section 501.0117(1) states that a “seller or lessor in a sales or lease transaction may not impose a surcharge on the buyer or lessee for electing to use a credit card in lieu of payment of cash, check, or similar means, if the seller or lessor accepts payment by credit card.”  Moreover, a surcharge is defined as any additional amount imposed at the time of a sale or lease transaction by the seller or lessor that increases the charge to the buyer or lessee for the privilege of using a credit card to make payment.  Id.
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Posted in Asset Protection,Business & Corporate Law,Tax Law & IRS Defense

The FDCPA was developed in part to help prevent abusive practices in debt collection and to allow consumers the opportunity to dispute the validity of a debt.  The FDCPA applies when a debt collector attempts to communicate with a consumer debtor.  While the initial communications may not violate the Act, generally, the Act prohibits further communication when the debtor notifies the debt collector that he or she is requesting more information on the debt or disputes the debt.  The Act will typically apply to communications the collector may have regarding the location of the debtor and communications between third parties or the debtor regarding the debt collection.  The debts subject to this Act are generally those incurred by a consumer primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.  Florida adopted the Consumer Collection Practices Act (“FCCPA”) which acts to supplement the FDCPA.  The FCCPA also protects debtors from a debt collector’s abusive collection practices but, unlike the FDCPA, the FCCPA also applies to the original creditor.  As always, you should consult with a Florida licensed attorney who may be able to help protect you from improper collection efforts.

See 15 U.S.C. §1692 (a)-(p); see also, §§559.55-559.785, Fla. Stat.

Posted in Asset Protection,Business & Corporate Law

In order to discharge student loan debt in bankruptcy, a debtor must show that repaying the student loan debt will cause undue hardship.

Florida Bankruptcy Courts will typically apply the Brunner test when attempting to determine undue hardship.  In order for a debtor to meet the Brunner standard for undue hardship, the debtor must show “(1) that the debtor cannot maintain, based on current income and expenses, a ‘minimal’ standard of living for herself and her dependents if forced to repay the student loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans.”  In re Cox, 338 F.3d 1238, 1241 (11th Cir. 2003), quoting Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2d Cir. 1987).

If you are having financial difficulty due to student loans or other debts, you should consult with a licensed Florida bankruptcy attorney.

Posted in Business & Corporate Law,Tax Law & IRS Defense

The Internal Revenue Service’s (“IRS”) First Time Abate (“FTA”) policy provides for an abatement of certain financial penalties for taxpayers with a record of tax compliance who are current with filing and payment requirements.  It is essentially a streamlined IRS process to abate or remove a first-time tax penalty as a one-time consideration based on a taxpayers’ compliance history.
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Posted in Asset Protection,Business & Corporate Law

If you own a business in Florida, you should make sure your personal assets are protected from your business liability and your business assets are protected from personal liability.  This level of planning is often referred to as Inside-Out vs. Outside-In asset protection.  Inside-Out liability refers to when a business owner can have his or her personal assets attacked based on a business lawsuit.  This is one of the primary reasons that someone forms a business entity – to protect one’s personal assets from business liability.  It is important how a business entity is structured to achieve the best asset protection in this regard.
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Posted in Asset Protection,Business & Corporate Law,Probate & Trust Administration,Real Estate Law,Tax Law & IRS Defense,Wills, Trusts & Estate Planning

The attorney-client privilege is one of the most important legal protections that an individual or entity has when seeking legal advice from a Florida attorney.  Section 90.502(c) of the Florida Statutes states that communication between an attorney and a client is confidential if it is not intended to be disclosed to a third-party other than when the communication to a third-party is made in the furtherance of legal service to the client or when the use of a third-party is reasonably necessary for communication between the attorney and client.  It is important to note that there are exceptions that may apply, such as when the attorney’s services are sought to enable what the client knows to be a crime or fraud.  The purpose of the statute is to protect almost all information disclosed by the client.  However, this protection can be waived and subject to disclosure if third-parties are involved in the communication.  Moreover, Section 90.507 of the Florida Statutes provides that the attorney-client privilege is waived when a confidential matter is voluntarily discussed in a manner where a reasonable expectation of privacy does not exist.  Examples may include copying a third party to an email to your attorney, forwarding an email from your attorney, including a friend in a meeting with your lawyer, or encountering your lawyer at a public venue with other people listening to the conversation and discussing your case.
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Posted in Asset Protection,Business & Corporate Law

Many clients have questions about improving their credit post-bankruptcy.  A successful bankruptcy eliminates or discharges a debtor’s legal obligation to repay a debt.  However, it does not place an affirmative duty on a debtor’s creditors to remove any pre-bankruptcy non-payment history on credit reports.  In other words, a bankruptcy may clean up legal obligations, but it does not affect credit reports unless the creditor voluntarily corrects its reporting.  Experian, Transunion, and Equifax are the national credit reporting agencies.
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Posted in Asset Protection,Business & Corporate Law

Under Florida Statute §627.4137, you may request a person or entity reveal certain liability insurance information to you. Section 627.4137 of the Florida Statutes states, “Each insurer which does or may provide liability insurance coverage to pay all or a portion of any claim which might be made shall provide, within 30 days of the written request of the claimant, a statement, under oath, of a corporate officer or the insurer’s claims manager or superintendent setting forth the following information with regard to each known policy of insurance, including excess or umbrella insurance:
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