Posted in Real Estate Law

Procedurally, the State of Florida treats deficiency judgments on foreclosed residential homes differently than the foreclosure actions themselves.  Although the deficiency judgment may seem like an extenuation of the foreclosure action to homeowners, the reality is that a deficiency judgment action is its own legal proceeding.  In fact, the deficiency judgment cannot even take place until after the sale on the subject property.  That’s because a deficiency judgment action is filed by the lender to collect, in general, the difference between the amount owed by the borrower and the fair market value.  Recently, the State of Florida made a few changes to the procedural rules that govern deficiency judgments on real property that further distinguish deficiency actions from foreclosure actions.
Continue Reading »

Posted in Asset Protection,Real Estate Law,Tax Law & IRS Defense,Wills, Trusts & Estate Planning

In a previous blog (click here), we posted about the Mortgage Forgiveness Debt Relief Act (“MFDRA”) and how it had yet to be extended by Congress to cover mortgage debts forgiven in 2014.  MFDRA prevents homeowners who went through a short sale, foreclosure sale, a principal reduction, or some other type of waiver of a deficiency regarding their primary residence from being taxed on the amount of mortgage debt cancelled or forgiven.
Continue Reading »

Posted in Real Estate Law,Tax Law & IRS Defense

The Firm is republishing a September 2013 blog post regarding the ability of Florida property owners to contest or appeal the assessed value of their property.  The republished blog, below, includes updated information for 2014.
Continue Reading »

Posted in Asset Protection,Real Estate Law,Tax Law & IRS Defense,Wills, Trusts & Estate Planning

The Florida Department of Revenue is authorized to levy a documentary stamp tax on deeds, bonds, promissory notes, written obligations to pay money, mortgages, liens, and other evidences of indebtedness.  Florida law authorizes different taxation rates depending on the type of transaction.  The documentary stamp tax is typically $0.70 per every $100.00 of consideration for instruments conveying an interest in real property including, but not limited to, deeds, easements, and contracts or agreements for deed.[1]  Alternatively, the documentary stamp tax for bonds, mortgages, liens, promissory notes, and other written obligations to pay money is generally $0.35 per every $100.00 of consideration.[2]  The documentary stamp tax for promissory notes or other written obligations to pay money typically may not exceed $2,450.[3]
Continue Reading »

Posted in Asset Protection,Probate & Trust Administration,Real Estate Law,Wills, Trusts & Estate Planning

Many married couples jointly own their home or other Florida real property.  It is easy to overlook the legal transfer of such jointly held property when faced with the death of a husband or wife.  However, clearing title to real estate following the death of a loved one is an important consideration and should be promptly addressed by the surviving family and a licensed Florida attorney where possible.
Continue Reading »

Posted in Real Estate Law

Section 558.004, Florida Statutes, provides Florida contractors, subcontractors, suppliers, and design professionals (collectively “Contractors”) the opportunity to inspect and cure construction defects prior to the filing of a legal action.  A Florida property owner must serve a notice of claim on the Contractor at least 60 days prior to the filing of a lawsuit.  Fla. Stat. § 558.004(1).  The owner’s notice must refer to the statute and describe (i) the claim in reasonable detail sufficient to determine the general nature of each alleged construction defect and (ii) the damages or loss resulting from the defect.  The property owner should strive to serve the notice within 15 days after discovery of the defect.
Continue Reading »

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.
Continue Reading »

Posted in Asset Protection,Probate & Trust Administration,Real Estate Law,Wills, Trusts & Estate Planning

A land trust is “an express written agreement or arrangement by which use, confidence, or trust is declared of any land […] under which the title to real property […] is vested in a trustee.”  Fla. Stat. § 689.071.   It is an average tool at keeping property ownership partially concealed from prying eyes, but it does not generally offer great asset protection from creditors.  Most land trusts are self-settled trusts.  Self-settled trusts are trusts that are formed by the property “owner” for the benefit of the same.  Self-settled trusts typically offer little to no asset protection for the property “owner”/beneficiary.  When a creditor properly seeks, through the discovery process promulgated by the Florida Rules of Civil Procedure, disclosure of property that the beneficiary has an interest in, the beneficiary will usually have to disclose the land trust property.  Once disclosed, the property of the self-settled land trust may be subject to the creditor just the same as if the property were held individually by the owner.  Many attorneys maintain that land trusts offer little to no asset protection and are simply a facade giving the illusion of protection while providing the benefit of limited privacy.