Miami Lawyer Blog

Consumers have two weeks left to ask for an independent review of their foreclosure cases, an analysis that could result in compensation up to $125,000 if lender wrongdoing is found.

Federal banking officials are overseeing the free reviews on primary residences that were in the foreclosure process from 2009 through 2010.

So far, 474,000 cases nationwide are pending review. The deadline for filing a request is Dec. 31.

Last year, the Office of the Comptroller of the Currency and other agencies ordered 14 mortgage servicers to address problems with their foreclosure practices.

"The orders directed the mortgage servicers to fix what was broken, identify who was harmed and provide remediation," said Bryan Hubbard, spokesman for the Office of the Comptroller of the Currency.

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Compensation ranges from a few hundred dollars up to $125,000 in the most egregious cases, Hubbard said. In rare instances, homeowners may have their foreclosures overturned, he said.

The reviews will be conducted by neutral third parties. Homeowners who ask for reviews or accept any money do not give up their rights to later sue their lenders, Hubbard said.

What's more, the reviews are not just open to homeowners who lost their properties in foreclosure. Those who completed short sales or who later brought their mortgage payments current would be eligible as long as their lenders served them with foreclosure papers at some point.

ClearPoint Credit Counseling Solutions, a Virginia-based agency with an office in Miami, is working with consumers to complete their applications. ClearPoint is a housing counseling agency approved by the Department of Housing and Urban Development.

"We help them with the paperwork," said Isabel Duran, a certified housing counselor with ClearPoint.

During the height of the housing crisis, homeowners complained of improper foreclosure practices by lenders.

In late 2010, bank employees admitted under oath that they rubber stamped foreclosures without knowing the details of the individual cases.

That prompted some banks to temporarily freeze foreclosure filings and later led to a $25 billion national mortgage settlement between five major lenders and 49 state attorneys general.

The foreclosure reviews are part of an enforcement action by federal officials and are not affiliated with the $25 billion settlement.

Longtime Miami housing analyst Lewis Goodkin said the reviews are important, even in the cases that do not reveal any lender fraud.

"There won't be any giveaways, but to me, it accomplishes something," Goodkin said. "It gives the homeowners fair treatment."

About the Law Offices of Aaron Resnick, P.A.

The Law Offices of Aaron Resnick, P.A. is a full service boutique law firm with offices in Miami, Boca Raton, Gainesville/Ocala, Jacksonville and New York City. For additional information, please go to www.thefirmmiami.com, or call 305.672.7495.

The Electronic Frontier Foundation's Alison Dame-Boyle has a good post on Victoria's Secret bad-tempered attempt to censor a campaign by the feminist group FORCE: Upsetting Rape Culture, which parodied the "Sure Thing" and "Unwrap Me" underwear that Victoria's Secret sells to high-school students with its PINK line, replacing the slogans with phrases like "Ask First" and "Respect."

Victoria's Secret used takedown notices to get FORCE's web-host to shut down its site, to get Twitter to yank the FORCE's @LoveConsent account, shutting down the dialogue about consent and rape just as it was gaining momentum. It's a sobering reminder of the power of copyright takedown rules to be used to censor political speech, and of the fragility of free speech in an era where the entertainment industry has lobbied successfully for laws that allow censorship without a court order.

Though nothing was down for long--the site was only down briefly as FORCE moved to a different hosting provider and the Twitter account was back up by Friday, December 7--even the brief downtime hurt the campaign. FORCE had purposefully launched PINK Loves CONSENT immediately prior to the fashion show to capitalize on the publicity surrounding the event, which attracted nearly 10 million viewers. During the show, tweets about body acceptance and the importance of normalizing a culture of enthusiastic consent made #loveconsent the number one hashtag associated with #victoriassecret. The Facebook page was similarly inundated. FORCE was able to use Victoria's Secret's popularity to raise awareness and generate discussion about rape culture on an unprecedented level. When its Twitter account and subsequently its websites were taken down, that discussion was interrupted at a vital time.

These takedowns highlight, once again, the weakest link problem that plagues Internet speech. Individuals and organizations rely on service providers to help them communicate with the world (YouTube, Facebook, Twitter, etc.). A copyright complaint to an intermediary generally triggers a virtually automatic takedown, because the intermediary has a strong interest in complying with the Digital Millenium Copyright Act (DMCA) and preserving its safe harbor from copyright liability. A trademark complaint directed to one of those providers can also mean a fast and easy takedown given that those service providers usually don't have the resources and/or the inclination to investigate trademark infringement claims. Moreover, because there is no counter-notice procedure, the targets of an improper trademark takedown have no easy way to get their content back up.

Terry Gene Bollea v. Gawker Media, LLC - USDC M.D. Florida

The United States District court for the Middle District of Florida denied the motion for preliminary injunction by Hulk Hogan to compel removal of sex tape from website and to prevent tape from being posted on other websites, finding that tape was a matter of public concern protected by the First Amendment.

Plaintiff Terry Gene Bollea, known professionally as the wrestler Hulk Hogan, sought a preliminary injunction against defendants Gawker Media and related entities, requiring defendants to remove excerpts from a sex tape of Bollea and a woman not his wife that defendants posted on Gawker.com on or about October 4, 2012, and to prevent defendants from posting any portion of the sex tape on any other website. The district court denied his motion.

According to Bollea, six years prior to this case, he engaged in consensual sexual relations with a woman who was not his wife and the encounter was videotaped, allegedly unbeknownst to plaintiff. Defendants obtained a copy of the sex tape and posted excerpts of it on their website without Bollea's permission. Defendants allegedly have refused numerous requests from Bollea to remove the excerpts from the site. Bollea filed suit against defendants, asserting a number of claims including invasion of privacy by intrusion upon seclusion, publication of private facts, violation of the Florida common law right of publicity, intentional infliction of emotional distress, negligent infliction of emotional distress and copyright infringement, and filed a motion for a preliminary injunction.

The district court held that a plaintiff seeking a prior restraint on speech must establish that the restraint will be effective and that no less extreme measures are available. Bollea failed to overcome the presumption that the preliminary injunction would be an unconstitutional prior restraint because defendants' First Amendment rights override plaintiff's right of privacy. Noting the U.S. Supreme Court had recently recognized that the heart of First Amendment protection is speech on matters of public concern, the court reasoned that the sex tape constituted a matter of public concern, demonstrated by Bollea's public persona, his reality television show, his own book describing his affair, and his own public discussion relating to his marriage and the tape, and that the inappropriate or controversial nature of the speech does not affect whether it is a matter of public concern. The court also found that plaintiff was not entitled to a preliminary injunction because he failed to demonstrate that he would suffer irreparable harm if the tape were not removed. Embarrassment and economic loss do not justify a preliminary injunction, according to the court. In fact, noting the Supreme Court has repeatedly recognized that even minimal interference with the First Amendment freedom of the press causes an irreparable injury, the court found that compelling the removal of the tape from the website would disserve the public interest. In addition, the court concluded that this was a case in which "the proverbial 'cat is out of the bag[,]'" since the tape had already been posted and injunctive relief likely would be ineffective.

Chapter 7 Bankruptcy In Miami - Some Vital Things To Consider

Following the recent economic turmoil of 2008, scores of people as well as businesses have been trapped in a vicious cycle of debt. With the escalating prices of fuel, gas, food, electricity and every other essential item, it's quite obvious to see individuals struggling with an enormous amount of debt. If you're a resident of Miami and facing a similar debt situation, don't fret. These days, there are plenty of debt relief options available in the market. Based on a debtor's monetary situation, one may choose to go for debt consolidation, debt settlement, debt management and at times even bankruptcy. Although bankruptcy is not always the best solution to all your debt problems, it provides you with an opportunity to wipe away most of your debts. When you're contemplating bankruptcy, there are several legal questions that you need to take into consideration. The decision to declare bankruptcy is a very personal and tough one. Every debtor contemplating bankruptcy must find answers to the basic legal queries concerning bankruptcy. When you gather sufficient legal information, it'll be easier for you to decide whether bankruptcy is the best debt relief option for you.
Once you file for Chapter 7 bankruptcy in Miami, your finances will be reviewed by the bankruptcy court, and your property may even be sold off to repay your creditors. Then, a majority of the outstanding debt gets discharged. When a particular debt is discharged, the creditor has no further claim on you, even though you ultimately collect sufficient money to repay your creditors. However, in certain cases, filing Chapter 7 bankruptcy could be a big mistake. Therefore, think before you file.

See if Chapter 7 is the best means of protecting you from your creditors. In case you owe back taxes, student loans, child support or alimony, you won't be able to discharge those debts. As for mortgage debt, it can be discharged, but the debtor won't be able to keep the home since the collateral will go back to the mortgage lender or bank as compensation for the deficit payable by the debtor. Besides, Chapter 7 won't discharge debts due to deceit, driving under influence charge or excessive credit card usage just before filing bankruptcy.

Evaluate your property against Florida's catalog of exemptions to see whether it's at risk. Even though your property can be sold off by the court to repay your creditors, every state excuses certain types of assets, up to a specific dollar level, from sale. In Miami, no matter how much your home's value, it is exempted. However, you cannot claim in excess of $1,000 in personal property, together with equipment or tools you require for your job.

Check whether you qualify for Chapter 7 bankruptcy in Miami. Your income for the last six months before filing should be typically less than the Florida median, or you need to pass a special "means test" when your earnings are adjusted for expenditures. You also need to enroll in a credit-counseling session in the last six months ahead of filing. However, you are prohibited from filing if you've undergone a bankruptcy petition dismissal in that particular six-month period.

Guest Author : Mary Williams is the Community Member of Oak View Law Group and has been contributing her suggestions to the Community since 2009. Not just that, she has also made notable contributions through the various articles written on different subjects related to the debt relief, credit consolidation, bankruptcy, etc.

Article Excerpt
Double Play: Sports Arenas Add Upscale Nightclubs
BY ARIAN CAMPO-FLORES

Miami At a growing number of sports arenas, sky boxes are no longer enough.

The Miami Heat recently unveiled Hyde American Airlines Arena, a spinoff of the Hyde Lounge nightclub in Hollywood, Calif. On opening night in October, suited doormen manned velvet ropes. Electronic dance music pulsed from the sound system. Waitresses in short red dresses served cocktails and dishes like wagyu steak to patrons on leather banquettes.

"It's amazing," says Aaron Resnick, a 40-year-old attorney who spent halftime with a group of friends sipping Champagne and nibbling on sushi. "This is bringing the glitz and glamour of South Beach" ...

Continue reading article with pop up player

http://online.wsj.com/article/SB10001424127887323751104578149351057748048.html?mod=googlenews_wsj#articleTabs%3Dvideo

Resnick is the managing partner of the boutique law firm, the Law Offices of Aaron Resnick, P.A., and founder of Faction Capital. His law practice concentrates on business and commercial matters, and sports and entertainment law. His current practice also includes the personal representation of a number of current and former professional athletes in the National Football League, the National Basketball League and Major League Baseball, as well as members of the arts, fashion and entertainment world.

Resnick, a graduate of Leadership Miami, is a leader in the Miami's legal and cultural arts scene. Resnick was awarded the "Shining Star" Award by the Arts & Business Council of Miami, Inc. This award each year honors the top Miami business professional supporting the arts and cultural community. Resnick was the founding chairperson of the Friends of the New World Symphony, and now serves permanently on its Executive Committee. He served on the executive committee for numerous young patron groups in South Florida including, but not limited to: Best Buddies of South Florida, Big Brothers Big Sister's Impact Circle, Art Crowd of the Bass Museum, the Green Room Society for the Center for Performing Arts, the Tropees of the Historical Museum of Southern Florida, the Jewish Legal Society of Miami, and the MOCA Shakers amongst others. He is a Regional Board Member of the Maccabi World Union and a member of the Ben Gurion Society of the Greater Miami Jewish Federation.

Currently, he is a member of the Silver Director's Circle for the Bass Museum,the President's Circle for the Museum of Contemporary Art, the Maestro's Circle for the Friends of the New World Symphony, and a Supporting Member of the Adrienne Arsht Center for the Performing Arts (and a member of the Green Room Society). Resnick is a board member of the Little Lighthouse Foundation, www.littlelighthouse.org, which is a Miami based charity that seeks, identifies and provides support to children and their families with health, educational, and financial challenges. Mr. Resnick received his Bachelors of Arts in Political Science with honors from Emory University and a Juris Doctor with honors from the University of Florida.

About the Law Offices of Aaron Resnick, P.A.

The Law Offices of Aaron Resnick, P.A. is a full service boutique law firm with offices in Miami, Boca Raton, Gainesville/Ocala, Jacksonville and New York City. For additional information, please go to www.thefirmmiami.com, or call 305.672.7495.

Homeowners facing foreclosure just received an early holiday present: They won't be evicted from their homes over the holidays.

Mortgage giants, Freddie Mac (FMCC, Fortune 500) and Fannie Mae (FNMA, Fortune 500), announced Monday that they will suspend all bank repossessions beginning December 17 and December 19, respectively, and will not resume the evictions until January 2, 2013.

"The holidays are a chance to be with loved ones and we want to relieve some stress at this time of year," said Terry Edwards, Executive Vice President of Credit Portfolio Management, Fannie Mae.

According to Freddie spokesman, Brad German, the suspension will not affect other pre- or post-foreclosure activities, such as the filing notices of default or the scheduling of auction sales. Fannie said in its press release that other legal and administrative proceedings will also continue.

Bank of America (BAC, Fortune 500) said it will also put a halt to foreclosure evictions both for loans it owns and for those it services for investors during the holiday period. Other large mortgage lenders, including JPMorgan Chase (JPM, Fortune 500), Wells Fargo (BWF), and Citibank (C, Fortune 500) have postponed foreclosures during the holidays in the past, but have yet to say whether they will do so again this year.

The reprieve is separate from the previously announced moratoriums on foreclosure evictions for victims of Superstorm Sandy in New York, New Jersey and Connecticut, which will continue through February. To top of page

Good news for single family home investors, rehabbers and buyers seeking to use low-down payment FHA financing: The temporary waiver of FHA's 90-day "anti-flipping" rule was extended last week through 2014.

The waiver, which facilitates purchases of homes from sellers who have held title to their properties for less than 90 days, continues a policy first adopted by the Obama administration in 2010.

Starting in 2003, FHA had imposed the 90-day standard as part of an effort to rein in rampant quick-flips of houses, where investors made minimal or no improvements to rundown, foreclosed or abandoned houses, then sold them days or weeks later at high price markups with the help of inflated appraisals to purchasers using FHA loans.

Those flips frequently involved collusion and fraud by teams of mortgage loan officers, realty agents and appraisers -- even straw buyers who defaulted and disappeared without making a single payment -- and racked up significant losses to FHA's insurance fund. Neighborhoods suffered because the properties remained empty and in bad physical condition, depressing values of houses in the immediate vicinity.
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Since 2011, FHA has made annual extensions of its waiver. This year, an FHA official told me Friday, the agency opted for a two-year term in order "to provide greater levels of certainty" for lenders and buyers, removing questions about whether, and for how long, the waiver would be continued. Since the first waiver in 2010, according to the official, FHA has successfully insured $11 billion worth of mortgages on 65,250 homes where the seller had held title for less than 90 days.

In a Federal Register notice Nov. 29 announcing the extension, acting FHA commissioner Carol J. Galante said the objective is to increase "the availability of affordable homes for first time and other purchasers, helping stabilize real estate prices as well as neighborhoods and communities where foreclosure activity has been high."

Among the key requirements that will continue during the latest waiver:

All transactions must be arms-length, with no identity of interest between the buyer and seller or other participants. Lenders are required to ensure that the seller actually holds title to the property. (In earlier flipping schemes, buy-sell transactions sometimes moved so fast that the seller never acquired legal title.) There should be no "pattern" of previous flips of the property during the 12 months preceding the transaction.

In cases where the sales price of the resold property is more than 20 percent more than what the seller paid for it, there must be documentation showing the renovations and repairs that justify the markedly higher resale price. A second appraisal may be used to substantiate the increase in value, but the second appraiser must be selected from FHA's roster. When no significant renovations occur and the price is 20 percent higher than acquisition, the appraiser must provide "appropriate explanation" for the sudden increase.

Inspections are required of all the key components of the building structure and systems when price jumps exceed 20 percent. The inspection report must be provided to the purchaser before closing. If the inspection reveals structural or "health and safety" defects, repairs must be completed before the closing and a final inspection performed to ensure that the repairs have been made.

Real estate professionals and others involved in single family investment activities welcomed the latest extension and its two-year time span. Kevin Kim, an agent with Windermere Preferred Living in Brea, California said "this definitely benefits my investors, but it's also good for communities" where high rate of foreclosure have left properties sitting around in deteriorating conditions.

Kim said most of his investor clients do not exceed the 20 percent price-increase threshold -- "typically it's more like 10 to 12 percent" -- but they virtually all try to acquire, renovate and resell in less than 90 days.

Cathy Bureau, broker-owner of Green Home Realty in San Antonio, Texas, who specializes in the central areas of the city, says FHA's two-year extension assures investors that there will be takeout financing for buyers, thereby cutting costs on the "hard money" line of credit financing they use to acquire their houses. At interest rates of 14 to 16 percent, "every day costs money," she said, so for investors the ability to sell quickly after completing repairs is crucial.

Rising Prices Could Lift 3.5M Homeowners Out of Negative Equity

While almost one-quarter of homeowners remain underwater, rising home prices over the past year have some economists hopeful negative equity could begin to diminish in coming months.

"The negative equity problem is still crippling many homeowners and the wider economy," Capital Economics stated in a report.

In addition to the almost one-fourth of homeowners who owe more on their mortgage loans than their homes are worth, almost half of homeowners do not meet the 80 percent loan-to-value ratio required for a standard refinancing.

While "[a]dmittedly, the recovery is still in its infancy," Capital Economics sees the potential for 3.5 million homeowners to move out of negative equity positions over the next 12 months.

CoreLogic reports prices have risen 5 percent over the past 12 months, and Capital Economics reports the greatest movement is occurring in the same locations that experienced the greatest price declines and highest instances of foreclosures and negative equity during the housing crisis.

For example, about 40 percent of homeowners in Arizona and Florida are underwater. However, home prices have risen 18.7 percent and 6.3 percent, respectively, in these two states over the past year.

While Capital Economics is sticking to its prediction that house prices will rise about 5 percent next year, the economists admit "the upside risks to that forecast are clearly rising."

So far this year, rising home prices have helped 1.3 million households rise out of negative equity, according to CoreLogic.

If home prices were to rise by 10 percent next year, about 3.5 million borrowers would be lifted out of negative equity and 6 million would become eligible for standard refinancing after seeing their loan-to-value ratios fall back to or below 80 percent.

"The faster prices rebound, the quicker the negative equity problem will be resolved," Capital Economics stated.

With home prices still about 27 percent below their 2006 peak, 10 percent under-valued compared to current rental rates, and 20 percent under-valued compared to per capita incomes, Capital Economics sees no need for concern over another bubble as prices continue to rise.

Attorney Aaron Resnick will be the main speaker at "Defending a Foreclosure:
Helping Families Save Their Homes". The engagement will be January 22, 2013 • Miami, FL. For more information or to purchase tickets, please go to http://lawreviewcle.com/seminars/2013-01-22-Miami_FL-defending-a-foreclosure.html.

Defending a Foreclosure: Help Families Save Their Homes LawReviewCle's Foreclosure Defense in America is an in-depth examination of the tools you will need to build a successful foreclosure defense practice, along with a detailed treatment of the emerging pleading, discovery, trial and appellate strategies you need to achieve results for your clients.

This course offers practical, real world advice on how to find clients, how to successfully manage a profitable caseload and how to employ the new PST negotiation and trial strategies that will help you develop a loyal base of satisfied clients. Whether you are currently representing clients in foreclosure and want to know the strategies and tools that are producing real results in this dynamic and ever-changing area of the law or whether you're looking to expand your practice to include this most rewarding practice area, this course will provide invaluable resources for you.

See Agenda

Key Topics

The Present State of the Foreclosure Crisis
Mortgage Securitization Issues
Understanding Basic Substantive Law
Client Relations
Judicial vs. Non-Judicial Foreclosures (Hunter or Hunted?)
Loan Modification / Short Sales / Deed in Lieu / Tax Issues
Bankruptcy Issues
Ethical Considerations

Speaker

Aaron R. Resnick
Attorney Aaron R. Resnick
Law Offices of Aaron Resnick, P.A. - Miami, FL

Aaron Resnick, a graduate of Leadership Miami, is a leader in the Miami's legal and cultural arts scene. Mr. Resnick was awarded the "Shining Star" Award by the Arts & Business Council of Miami, Inc. This award each year honors the top Miami business professional supporting the arts and cultural community. Mr. Resnick was the founding chairperson of the Friends of the New World Symphony, and now serves permanently on its Executive Committee. He also sat on the Board of Directors for the Miami Design Preservation League for over 10 years. He has served on the executive committee for numerous young patron groups in South Florida including, but not limited to: Best Buddies of South Florida, Big Brothers Big Sister's Impact Circle, Art Crowd of the Bass Museum, the Green Room Society for the Center for Performing Arts, the Tropees of the Historical Museum of Southern Florida, the Jewish Legal Society of Miami, and the MOCA Shakers amongst others. He is a member of the South Beach Athletic Club and an active in local, state and national politics. He is a Regional Board Member of the Maccabi World Union and a member of the Ben Gurion Society of the Greater Miami Jewish Federation.

Currently, he is a member of the Silver Director's Circle for the Bass Museum, the Leadership's Circle for the Museum of Contemporary Art (Miami), the Maestro's Circle for the Friends of the New World Symphony, and a Supporting Member of the Adrienne Arsht Center for the Performing Arts (and a member of the Green Room Society). Mr. Resnick recently founded, with several friends, the Little Lighthouse Foundation, www.littlelighthouse.org, which is a Miami based charity that seeks, identifies and provides support to children and their families with health, educational, and financial challenges.

Professionally, Mr. Resnick is an attorney, who honed his craft at one of Florida's oldest and most prestigious firms, Gunster Yoakley, before starting his own boutique law firm in 2005 with offices now in Miami, Boca Raton, Gainesville/Ocala, Jacksonville and New York City. Mr. Resnick is admitted to all of the state and federal courts in Florida and the United States Supreme Court.

Mr. Resnick's law practice concentrates on business and commercial matters, and sports and entertainment law. He has successfully represented a number of clients in commercial foreclosure matters and has a company that specializes in working with lenders on distressed assets.

His current practice also includes the personal representation of a number of current and former professional athletes in the National Football League, the National Basketball League and Major League Baseball, as well as members of the arts, fashion and entertainment world. Mr. Resnick himself is an avid collector of art, and is in a partership with a famous celebrity photographer promoting and marketing his photographs, www.artofthenight.com. Mr. Resnick has lectured on art fraud and is in the process of writing a book related to some of the major art fraud cases of the 20th century.

In addition to being an attorney, Mr. Resnick is one of the owners of Faction Capital, LLC, a distressed asset consulting firm, and AJAX Entertainment, LLC, a marketing company targeting young professionals and patrons of the cultural arts.

Awards & Recognition

Florida Trend's Florida Legal Elite, 2009, 2010
Super Lawyers Magazine Florida Rising Stars, 2010, 2011
Film, Recording and Entertainment Council Entertainment Law Award
South Florida Business Journal 40 Under 40
Cystic Fibrosis Foundation 40 Under 40 Attorneys
Cystic Fibrosis Foundation 40 Under 40 Business Professionals
"Shining Star" Award by the Arts & Business Council of Miami, Inc.
American Bar Association Young Lawyers Division "Star of the Quarter"

Profession & Bar Association Membership

State of Florida, 1998
United States Supreme Court , 2004
United States District Court for the Southern and Middle Districts of Florida, 1999
United States Court of Appeals, 11th Circuit, 1999
Florida Bar - Member Business Law Committee and Sports & Entertainment Law Committee
American Bar Association - Member Business Law Committee
Dade County Bar Association
Miami Beach Bar Association
Pillar Member of the Miami Beach Chamber of Commerce
Member of the United States-Mexico Chamber of Commerce The Inter-American Chapter
Member of the India-US Chamber of Commerce South Florida
Member of the America-Israel Chamber of Commerce Florida Chapter
Member of the Florida China Chamber of Commerce
Member of the Italy-America Chamber of Commerce Southeast
Member of the Panamanian American Chamber of Commerce
Member of the Columbian American Chamber of Commerce
Member of Canadian American Chamber of Commerce of South Florida
Member of the banking committee for the Asian American Hotel Owner's Association

Education

J.D., University of Florida Levin College of Law, Gainesville, Florida, 1995-1997
with Honors.

Universite de Montpellier, Montpellier, France, 1997
with High Honors.

B.A., Emory University, Atlanta, Georgia, 1990-1994

Defending a Foreclosure:
Helping Families Save Their Homes
January 22, 2013 • Jacksonville, FL

Purchase access here (or for more information)

http://lawreviewcle.com/seminars/2013-01-22-Jacksonville_FL-defending-a-foreclosure.html

Defending a Foreclosure: Help Families Save Their Homes - Presented by Attorney Justin McMurray of the Law Offices of Aaron Resnick, P.A.

LawReviewCle's Foreclosure Defense in America is an in-depth examination of the tools you will need to build a successful foreclosure defense practice, along with a detailed treatment of the emerging pleading, discovery, trial and appellate strategies you need to achieve results for your clients.

This course offers practical, real world advice on how to find clients, how to successfully manage a profitable caseload and how to employ the new PST negotiation and trial strategies that will help you develop a loyal base of satisfied clients. Whether you are currently representing clients in foreclosure and want to know the strategies and tools that are producing real results in this dynamic and ever-changing area of the law or whether you're looking to expand your practice to include this most rewarding practice area, this course will provide invaluable resources for you.

See Agenda

Key Topics

The Present State of the Foreclosure Crisis
Mortgage Securitization Issues
Understanding Basic Substantive Law
Client Relations
Judicial vs. Non-Judicial Foreclosures (Hunter or Hunted?)
Loan Modification / Short Sales / Deed in Lieu / Tax Issues
Bankruptcy Issues
Ethical Considerations

Speaker

Justin McMurray
Attorney Justin McMurray
Law Offices of Aaron Resnick, P.A. - Miami, FL

Justin McMurray is an attorney experienced in various aspects of Florida and federal law. Since becoming an attorney in 2006, he has had the pleasure of sharing his services and expertise with hundreds of clients in Florida and abroad. Born and raised in Gainesville, Florida, he studied first at the University of North Carolina at Chapel Hill and at the University of Glasgow, Scotland, before returning to the University of Florida to earn his Bachelor of Arts and a subsequent Juris Doctor from the University of Florida's Frederick G. Levin College of Law.

Education

J.D., University of Florida Levin College of Law, 2005
B.A., University of Florida, 2000

Professional & Bar Association Memberships

Florida -- Member Since: 2006
U.S. District Court, Middle District of Florida -- Member Since: 2010
U.S. District Court, Southern District of Florida -- Member Since: 2010
U.S. Bankruptcy Court, Middle District of Florida -- Member Since: 2010
U.S. Bankruptcy Court, Southern District of Florida -- Member Since: 2010

Real estate brokers have certain obligations to perform in selling real estate. If you hire a broker by signing a real estate brokerage contract or listing agreement, the agreement should set out the actions that the broker agrees to take in selling your property. Your broker also has fiduciary duties as your agent. If the broker fails to perform promised actions or fails to carry out his or her duties, you have some remedies available to you.
Getting Out of a Listing Agreement

If you want to get out of a listing agreement, for whatever reason, you should:

Look at the agreement itself to see if there is language which covers your situation
Look at the language of the agreement to see if there are duties the broker hasn't performed
Consider the time remaining on the agreement before it expires. It may be best to simply let it run out on its own, holding the listing broker to the specific conditions of sale listed in the listing agreement.

Contractual Obligations

Most states require brokerage and listing agreements to be in writing in order to be enforceable. The agreement determines when a commission is earned. A broker employed ''to sell'' or ''effect a sale'' of the property is not entitled to compensation until the broker effects a sale or procures from the buyer a binding contract of purchase. So, if your broker fails to bring about a sale or obtain a binding contract of purchase, as required by your contract, you don't have to pay your broker.

The brokerage or listing agreement typically sets out the actions that your broker agrees to take in selling your property. Such actions include:

Showing your property
Marketing your property
Negotiating with the buyers
Preparing the contract of sale
Representing you at closing

The listing agreement also typically contains a provision on how disputes should be resolved. This may include:

Arbitration
Mediation
Filing a lawsuit in small claims court or civil court

If your broker fails to do anything that he or she agreed to do in the listing agreement, you must use the dispute resolution process that you agreed to use. If a direct solution with your broker won't work, you should file a complaint with the appropriate board or court. In order for you to obtain relief, you must be able to show that you suffered some losses due to your broker's failure to perform contractual obligations.

You may want to file a complaint with your local or state real estate board, indicating that your broker did not perform as agreed.
Fiduciary Duties

Because you have a legal agency relationship with your broker, he or she has fiduciary duties to you. These duties flow from the law of agency. They include such things as:

Acting in your best interest in selling your property
Being loyal to you in carrying out the sale process
Disclosing pertinent information to you
Disclosing all offers to you

If your broker violates his or her fiduciary duties and you suffer damage as a result, you may file a complaint before the hearing body as agreed upon in the brokerage or listing agreement.

You should also file a complaint with your local or state real estate board, indicating that your broker violated his duties toward you.
Relief

Real estate brokerage contracts and listing agreements are contracts. Therefore, if you suffer losses because of your broker's failure to perform under the contract, you can sue your broker for breach of contract and obtain contractual remedies. These include:

Compensatory damages, which is a monetary award to reimburse you for your losses
Punitive damages, which is an award of money to punish or deter similar conduct in the future, depending on the law of your state, if your broker's conduct was wanton or reckless
Attorney's fees if there is a provision about attorney's fees in the listing agreement

If you suffer losses because your broker violated his or her fiduciary duties, you can sue your broker for breach of fiduciary duties, negligence, fraud or conversion. You can obtain:

Compensatory damages, which reimburse you for your losses
Punitive damages, which compensate you for wanton or reckless conduct of the broker
Attorney's fees, if allowed by law

Recovering Your Losses

If you're successful in your lawsuit against your broker and your broker has insufficient personal funds to pay for your losses, you might be able to obtain payment from your state's real estate fund. Some states have set up funds derived from real estate license fees for the payment of claims on unpaid judgments against real estate licensees for fraud and conversion of trust funds. Check with your state's real estate licensing board to see if your state has such a fund, and if so, how you can make a claim.

If you want some legal advice about your options for remedies or you want to file a complaint, contact a real estate attorney in your area.
Questions for Your Attorney

I think I have grounds to terminate my listing agreement, but my real estate broker does not agree? How complicated will it be to end the listing of my home? Could this interfere with the sale of my home if I want to list my house with another broker or if I find a buyer?
Where do I file a complaint if my broker fails to perform actions that she agreed to take in the listing agreement?
What kind of compensation can I get if my broker fails to act in my best interest?

About the Law Offices of Aaron Resnick, P.A.

The Law Offices of Aaron Resnick, P.A. is a full service boutique law firm with offices in Miami, Boca Raton, Gainesville/Ocala, Jacksonville and New York City. For additional information, please go to www.thefirmmiami.com, or call 305.672.7495.

A lawsuit claiming that the gallery owner Larry Gagosian defrauded a prominent collector is pulling back the curtain, if ever so slightly, on the way high-end deals are sometimes made in the contemporary art world. The collector, Jan Cowles, 93, sued in January, accusing Mr. Gagosian of selling a 1964 Roy Lichtenstein painting, "Girl in Mirror," from her collection without her consent.

The following is taken from a recent article in the New York Times. It is copied for your convenience. http://artsbeat.blogs.nytimes.com/2012/11/07/gagosian-suit-offers-rare-look-at-art-dealing/?goback=.gde_2054749_member_185417266

"In court papers the Gagosian Gallery has said that Mrs. Cowles's son, Charles Cowles, who was in financial straits, maintained that the painting was his to sell, not his mother's. Another version of the painting sold at Sotheby's in 2007 for just over $4 million. But Mrs. Cowles's painting, which Mr. Gagosian took on consignment, was eventually sold for only $2 million after assertions by the gallery -- disputed by Mrs. Cowles -- that it was damaged. Mr. Gagosian made an unusually high commission, $1 million.

A central question in the case has been whether Mr. Gagosian in essence worked both ends of the deal -- not disclosing to Mr. Cowles that his gallery had a relationship with the buyer and that it was trying to get a favorable price for that buyer. In a deposition made public on Wednesday, Mr. Gagosian said that he frequently represented both the seller and buyer in a deal without disclosing that fact to either party. "To be honest with you, the question hardly ever gets asked," he said. "I never get asked the question, 'Are you representing both sides.'"

When asked whether, in a consignment agreement, Mr. Gagosian felt "any duty of loyalty whatsoever to the seller," he replied: "I just don't think about it in terms of -- in those terms. I think about, 'It's a financial transaction, and the seller wants to get paid.' My objective is to pay the seller and to make a profit for the gallery." Mrs. Cowles's lawyer, David Baum, claims that such representation of both parties without disclosure is "blatantly unlawful under New York agency law." On Wednesday the gallery called the claims baseless and said its "practices are fully consistent with both the law and the standards in the art world." A lawsuit claiming that the gallery owner Larry Gagosian defrauded a prominent collector is pulling back the curtain, if ever so slightly, on the way high-end deals are sometimes made in the contemporary art world. The collector, Jan Cowles, 93, sued in January, accusing Mr. Gagosian of selling a 1964 Roy Lichtenstein painting, "Girl in Mirror," from her collection without her consent.
Larry Gagosian.Casey Kelbaugh for The New York Times Larry Gagosian.

In court papers the Gagosian Gallery has said that Mrs. Cowles's son, Charles Cowles, who was in financial straits, maintained that the painting was his to sell, not his mother's. Another version of the painting sold at Sotheby's in 2007 for just over $4 million. But Mrs. Cowles's painting, which Mr. Gagosian took on consignment, was eventually sold for only $2 million after assertions by the gallery -- disputed by Mrs. Cowles -- that it was damaged. Mr. Gagosian made an unusually high commission, $1 million.

A central question in the case has been whether Mr. Gagosian in essence worked both ends of the deal -- not disclosing to Mr. Cowles that his gallery had a relationship with the buyer and that it was trying to get a favorable price for that buyer. In a deposition made public on Wednesday, Mr. Gagosian said that he frequently represented both the seller and buyer in a deal without disclosing that fact to either party. "To be honest with you, the question hardly ever gets asked," he said. "I never get asked the question, 'Are you representing both sides.'"

When asked whether, in a consignment agreement, Mr. Gagosian felt "any duty of loyalty whatsoever to the seller," he replied: "I just don't think about it in terms of -- in those terms. I think about, 'It's a financial transaction, and the seller wants to get paid.' My objective is to pay the seller and to make a profit for the gallery." Mrs. Cowles's lawyer, David Baum, claims that such representation of both parties without disclosure is "blatantly unlawful under New York agency law." On Wednesday the gallery called the claims baseless and said its "practices are fully consistent with both the law and the standards in the art world." "

The Law Offices of Aaron Resnick is one of the few South Florida firms with an Art Law division.

Five of the nation's largest banks have provided $3.6 billion in mortgage relief for Floridians as part of a nationwide foreclosure settlement, Attorney General Pam Bondi announced Monday. An additional $1.3 billion in modification relief is "in the pipeline," Bondi said in a written statement. More at the Tampa Bay Times and the South Florida Sun-Sentinel.

About the Law Offices of Aaron Resnick, P.A.

The Law Offices of Aaron Resnick, P.A. is a full service boutique law firm with offices in Miami, Boca Raton, Gainesville/Ocala, Jacksonville and New York City. For additional information, please go to www.thefirmmiami.com, or call 305.672.7495.

A business leasing commercial property must be careful in agreeing to and signing a lease. Beyond the dollars and cents of the agreement and the location and layout of the premises, a business leasing real estate (a "lessee" or "tenant") must consider how to protect itself before, during and after the term of the lease.

This overview addresses these issues directly, but is not an all-inclusive summary with respect to important issues facing a commercial tenant. Leasing and contract preparation requires expertise--from the lessee, from outside consultants and preferably from an experienced real estate attorney. While the author represents commercial landlords and tenants, and has substantial legal experience in real estate and leasing matters, this article should not be construed as formal specific legal advice to the reader, nor should the reader consider the author to be his/her attorney solely on the grounds of having read this article. Every tenant, every owner and every lease is unique and advice for particular circumstances really does require individual review and consideration.

Legal disclaimers aside, a lessee who wants to adequately plan for the future while protecting themselves from potential liability, unwarranted responsibilities and unnecessary legal fees should consider the issues detailed below with respect to the following five lease provisions, which commonly should be a central focus of any commercial tenant.

1. Use Limitations, Exclusive Use Provisions and Maintenance Obligations
Overview

While the intended use of the property has undoubtedly been considered well in advance of the signing of the lease agreement, it is essential that a tenant negotiate sufficiently broad limitations and inclusive language with respect to any use limitations on the premises. Due to assumptions, prior informal conversations and failure to consider potential ramifications, a tenant may overlook this important portion of any lease. Additionally, a tenant must be aware of neighboring locations within the same shopping center or similar environment which would directly compete with the tenant's business. When possible, a provision should be included barring other similar businesses that would compete with the tenant. Finally, a tenant must demand clearly defined maintenance and repair obligations.

The following considerations are recommended:

Broadly define the permitted use of the premises. The lease should broadly state what the property can be used for (ex: retail clothing and apparel store, fast-food restaurant, general non-retail office space). Ideally, the lease would allow for "any lawful use" but a landlord may demand a more narrow limitation. Regardless of oral understandings, prior use or anticipated current use, the lease should provide some detail on allowed use of the premises. A tenant must consider possible changes of modifications in their business and be sure to account for such.

Negotiate the Obligations that You Undertake. A tenant should be sure that maintenance and repair obligations are clearly defined in the lease. The agreement should clearly detail who is responsible for regular maintenance, small repairs, major repairs and any needed improvements. Typically, a tenant will be responsible for daily maintenance and potentially some small repairs, but all larger or less frequent matters should be the responsibility of the landlord.

Exclusive Use Provisions. If a tenant is moving into a large shopping center, retail facility or similar premises, care should be taken to evaluate potential competition which can be limited or eliminated with careful planning. An 'exclusive use' limitation will bind the landlord to not allow any uses on the property that directly compete with the use or business of the tenant. For example, a jewelry store that leases space in a retail shopping center can negotiate a provision that precludes the landlord from leasing out space to any other jewelry store. Exclusive use provisions are only relevant and effective where one landlord owns a large shopping center or similar facility.

2. Options to Extend the Term of the Lease

Overview

While a tenant must be careful to commit to an overly extensive term to the lease (i.e. too long), it also has an interest in securing its location and preventing an unwanted move of its business. An ideal lease term would be relatively short (2-5 years) with multiple options to extend the lease. Such an arrangement allows a tenant maximum flexibility to expand to new space if needed or to remain at the leased location for a longer period of time. The following matters should be squarely addressed in any lease extension provisions:

No Changes in Any Lease Terms. Any extension of the lease should not change any non-monetary obligations. The lease should continue on precisely the same terms, except with respect to rent and similar payments.

Applicable Rental Increase. A lease that includes options to extend the term of the lease should clearly state the amount of the rent to be charged during any extended period. Increases between rental terms should not typically exceed 5%, but cannot likely be expected to increase by an increment of any less than 2%. More complicated formulas are sometimes uses but run the risk of potential disputes or unclear definitions.

Automatic Extension or Notice to Landlord. The lease should be clear in what it takes to extend the lease. Extensions may occur 'automatically' unless the tenant provides notice to landlord of its intention to not exercise the option. Alternatively, certain defined 'notice' may be required of tenant in order to extend the lease, which if not timely provided will result in the natural termination of the lease.

Updates or Redecoration of the Premises. In connection with extended lease terms, a tenant should be sure to include a periodic obligation of the landlord to update the property and provide reasonable redecoration or renovation if needed. This type of obligation might be expected to exist every ten years.

3. Non-Rent Financial Obligations

Overview

Most lease agreements include financial obligations of the tenant in addition to simple rent payments. These may include shared utilities, property taxes, common area maintenance (CAM) expenses, insurance premiums and a variety of other case-specific fees and expenses. A tenant must be sure to adhere to the following guidelines with respect to all such financial obligations:

Clarity, Clarity, Clarity: The language providing any financial obligations of the tenant must be exceedingly clear. Nothing should be left to assumption or later negotiation.
Demand Documentation: All expenses that the tenant is required to pay should be contingent upon landlord providing adequate documentation. For taxes this would include a copy of the tax bill, for utilities this would include a copy of the utility bill, for common area maintenance this would include a detailed report of incurred expenses, etc.

Clarify the Result of Non-Payment: A lease should be clear on the result of a missed payment. A tenant will prefer for any such missed payment to amount to a non-material breach of the lease. Furthermore, the lease should be clear as to the result of non-payment due to a dispute of the amount of validity of the expense. In this regard, a tenant will want to provide some right to challenge any errant or inaccurate expenses/fees.

4. Assignment and Subletting

Overview

While the initial term of the lease typically represents the anticipated needs of a commercial tenant, most business owners understand the need for flexibility. In order to avoid the unwanted position of being 'stuck' in a lease, a careful tenant will be sure to reserve and retain its ability to assign its interest in the lease or sublease the premises. Landlords often want to limit or prohibit subleasing and assignment, so this represents a key area of negotiation. A well-advised tenant will be sure to include the following provisions with respect to assignment and subleasing:

A General Right to Assign and/or Sublease. Clear and concise language should be used to grant the tenant the right to assign or sublease the premises in its sole discretion.

Limit Landlord Discretion. If a landlord requires its consent to assign/sub-lease, this language should be included which requires the landlord to use 'reasonable' discretion.

Limit Tenant Liability. In the event of an assignment or sublease, a tenant must protect its exposure to potential liability. The assignment/sublease provisions of the lease should clearly define the limits of a tenant's liability in the event that a new tenant is taking over the lease.

5. Sale of the Property During the Lease Term

Overview

Most tenants are aware of the possibility that the owner of the property will sell the property. A tenant must be sure to secure its right to lease and use the property in the event of a sale of the property. Similarly, a landlord will want to bind the tenant to its obligations in the event of a sale of the property. A landlord will additionally want to secure related rights and assurances in connection with any sale of the property. The following represents an overview of several key concepts:

Termination of Landlord's Liability: A landlord will want to terminate its lease obligations in the event that they sell the property. A tenant should be comfortable with this language and it represents a reasonable request by landlord.

Subordination and Attornment: A landlord will often include language in a lease requiring a tenant to sign a 'subordination and attornment' agreement in the event of a sale of the property. Such an agreement binds a tenant to the new owner. This provision exists solely to benefit the owner/landlord (as well and the new buyer/owner). While its existence is not entirely objectionable to a tenant, it should be understood that agreeing to continue the lease with a new landlord carries with it some potentially substantial risk.

Estoppel Certificate: A landlord will desire a tenant to execute an 'estoppel certificate' in anticipation of a sale of the property. An obligation to execute such a certificate is often included in the lease. An estoppels certificate certifies that a lease is in place, details some its terms and certifies that there has not been a breach by the landlord. The need for such a document is understandable, but a tenant should be careful to assure that only reasonable information will be requested and that a sufficient timeframe will be granted.

Transfer of Deposit: A landlord will often want to transfer any tenant security deposits to the new owner. While this transfer does not pose any problems, a tenant should be sure that the lease clearly addresses this issue and relieves the tenant of any obligations to provide a renewed security deposit.

Right of First Refusal: In some instances, a tenant may want to negotiation a right of first refusal, to purchase the property. A right of first refusal gives the tenant the right to purchase the property on the same terms as received by the landlord in a bona fide offer which they are considering accepting.

Aaron Resnick, Esq. practices in the areas of business law and real estate law. Mr. Resnick represents business as tenants in lease transactions as well as landlords and real estate investors.

This article is for informational purposes only and should not be construed as legal advice with respect to any particular lease, circumstance, tenant or owner.

Aaron Resnick, Esq. is one of the hosts for this Friday night's (November 2, 2012) Beats After Sunset @ the Bass. Attendees will enjoy the following exhibitions on view:

* the Launch of tc: temporary contemporary

*UNNATURAL

*Egyptian Gallery

There will be beats by djs: catorce leches, gnarley calamarley, hundreds & los manos aqui, courtesy cocktails (21+) | mixologist and a beats after party at chalk ping pong & billards lounge: beats guests get one free drink at chalk and free ping pong from 11pm - 12am!

The Bass Museum of Art is a renown art museum in Miami Beach, Florida featuring a collection of Antiquities, Renaissance, and Baroque art and also provides educational programs and teacher resources that aim to inspire a new generation of creative artists. Aaron Resnick is a member of the Silver Director's Circle and has sat on the executive committee for the Art Crowd. Currently, he also is on the host committee for the monthly Beats After Sunset @ the Bass.

The Law Offices of Aaron Resnick is one of the few South Florida firms with an Art Law division.

For more information, please contact:

melissa brown
public relations and marketing manager
bass museum of art
2100 collins avenue
miami beach, fl 33139
t 3056737530 x 1010
c 540.588.7238
mbrown@bassmuseum.org
www.bassmuseum.org