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Should I Pick My Lawyer from a Billboard? Practical Advice on How to Pick a Lawyer

August 29, 2017/in Articles, General, Litigation/by Ted Hamilton

We have all seen them, the giant billboard that says “Aggressive for You”; “Make your wallet fat with us”; “Over 150 million recovered for victims”; or “Just Because You Did It, Doesn’t Mean You’re Guilty”.

Now it may be hard to believe, but at least in Florida, the Bar Association approves each and every billboard you see for its truthfulness and accuracy. Thus, a billboard cannot misrepresent a lawyer’s experience or credentials. It can’t inflate the truth and it must be honest. Unfortunately, beyond these basic approval criteria, lawyer ads can say whatever gets you in the door. So how do you choose a lawyer?

First, determine the type of legal issue you are facing. Just as in medicine, there are general practitioners and then there are specialists. The lawyer you currently deal with may have different types of lawyers’ in the firm. As a result, they may have the ability to handle varied types of law. Our firm for example has an estate planning and probate lawyer as well as a real estate lawyers. Although these two types of law might cross at times, the laws governing these areas of law is definitely different. As a result, the lawyer you need needs to practice in the area you need help in.

Second, if you know a lawyer, trust them and like them, ask them if they handle your type of matter. For example, if you call our office with a family law problem, we will tell you we don’t handle family law but we can refer you to a family law attorney. However, if you call our office for an estate plan, we have an excellent estate planning attorney in our office and I will connect you to her. If you call about a litigation matter, I might handle it or I might have an associate handle it depending on the complexity of the issue. If you don’t know a lawyer, you can check the internet and review sources such as www.Lawyers.com and www.martindale.com . You can also check reviews on Google.

Third, determine your budget. The pricing of lawyers varies greatly depending on the type of matter and the complexity of the issue. Even today, most lawyers bill by the hour. Very specialized matters such as tax appeals, benefits law issues or securities law issues, require a specialized attorney who will likely charge more. In Tampa, the rates for these types of attorney’s at this time runs anywhere from $375 per hour to over $500 per hour. As a general matter, larger firm prices are more than smaller firms or solo attorneys. Finally, you might have heard the slogan “you pay nothing unless you recover”. This is basically what is called a contingent arrangement. You don’t pay the lawyer unless they collect. This type of fee arrangement works best in the personal injury area where there is insurance coverage. However, our firm also does collections on a contingency basis. Thus, if you have a judgment to collect, our firm will often handle the collection of a judgment or suit to collect based upon a percentage of the recovery.

Finally, ask questions. Check the internet. Check the Florida Bar or your local bar to see if any grievances have been filed against the lawyer. These types of checks can help narrow down your choices and ensure you make the best decision. Also, if your not happy with your lawyer, make a change. There are over 100,000 lawyers in Florida. If yours is not doing the job for any reason, you certainly have the right to chose someone else.

Wetherington Hamilton founding attorney, Theodore J. Hamilton, has over 20 years of experience in handling real estate transactions and litigation. Attorney Hamilton has particular experience in matters involving complex litigation and complicated real estate matters having represented title insurance companies and individuals throughout the state of Florida. He can be reached by phone at (813) 676-9082 or via email at TJH@whhlaw.com.

Big Bankruptcy Rule and Form Changes Coming: Be Warned and Be Ready!

May 8, 2017/in Articles, Bankruptcy/by Ted Hamilton

Just about every year changes are made to the rules and forms having to do with bankruptcy cases. This year there are extensive changes proposed in regards to the rules and forms having to do with the filing of claims and in regards to Chapter 13 cases generally.

The proposed changes will take effect on December 1, 2017 provided that Congress and the Supreme Court approve (such approval is likely). These Rules and Form changes will significantly change how Creditors should approach bankruptcy cases and implements significantly shortened timelines for Creditors to take action, especially in Chapter 13 cases.

The major changes to the Rules and Forms are as follows:

Rule 2002. Notice to Creditors.

The changes to this Rule specify that at Creditors are to be provided at least 21 days’ notice of the time fixed for filing an objection to confirmation of a Chapter 13 plan and be provided at least 28 days’ notice of the confirmation hearing in a Chapter 13 case.

Rule 3002. Filing of Proof of Claim.

The modifications to this Rule require all creditors—including secured creditors—to file proofs of claim within 70 days of the filing date of a Chapter 7, 12 or 13 case or within 70 days of the date of conversion of a case to Chapter 12 or Chapter 13. There is a provision in this Rule that permits a creditor an extension of time of up to 60 days to file a proof of claim upon motion and order if the creditor did not have a reasonable time to file a proof of claim because the debtor failed to timely file the list of creditors and addresses or if the creditor did not have a reasonable time to file a proof of claim because the notice was mailed to the creditor at a foreign address.

This Rule adds a two-stage deadline for filing proofs of claim pertaining to security interest (mortgage or other lien) on property that is the principal residence of the debtor. These proofs of claim must be filed with the appropriate form account history attachment and escrow account statement within 70 days of the filing date (or conversion date). In addition, in order to be timely, all other loan documents evidencing the claim—such as the promissory note, mortgage—must be filed as supplement to the proof of claim within 120 days of the filing date (or conversion date). For such a claim to be timely, both of these deadlines must be met.

This 70/120 day time period is significantly shortened compared to the current rules which permits a claim to be timely if it is filed within 90 days after the Section 341 Meeting of Creditors date which, in practice, permits claims to be filed within an approximately 120 to 140 day time period from the filing date or conversion date.

Rule 3007. Objections to Claims.

The proposed modifications require at least 30 days’ notice to affected creditors of an objection to claim. Notice can be provided by “negative notice” which requires the affected creditor to oppose the objection and request a hearing within such 30 day period. This Rule also sets forth how service of the objection and notice is to occur—for most cases the service will be by first class mail; however, if the claim was filed by an insured depository institution as defined in the Rules then such service shall be by certified mail.

Rule 3012. Determining the Amount of Secured Claims.

The changes to the Rule provide for the process for determining the amount of a secured claim, i.e. “valuation” of a secured claim. A debtor can request such determination by a provision in a Chapter 13 Plan, by motion or by objection to claim. The proposed changes specifically provide that the debtor’s proposed valuation can seek to avoid a lien in its entirety—i.e. a “lien strip”—resulting in the affected creditor only holding an unsecured claim. Permitting a debtor to seek valuation through a Plan is a significant change to the present practice in all of the Florida Districts and will require creditors to objection to confirmation of Chapter 12 and Chapter 13 Plans or else be bound by the Plan terms upon confirmation (see proposed changes to Rule 3015 below).

Rules 3015. Filing of Plan, Effect of Confirmation of Plan.

This Rule requires use of the Official Form of Chapter 13 Plan unless a Local Form has been adopted. The Middle District of Florida has adopted a Local Form Plan; however, as of the date of this writing, neither the Northern District nor Southern Districts of Florida have adopted such a Local Form Plan though it is likely that both of these Districts will do so prior to the effective date of the Rule changes.

The modifications to this Rule further provide that a nonstandard provision in the Official Form or Local Form is effective only if it is included in the section of the Form designated for nonstandard provisions. In addition, the proposed changes require an objection to confirmation of a plan to be filed and served at least 7 days before the confirmation hearing date.

The proposed changes to this Rule also provide that the determination (i.e. “valuation”) of a secured claim in a Plan is effective upon confirmation and binding on the secured creditor notwithstanding whether the creditor filed a contrary proof of claim, notwithstanding how the debtor scheduled the claim, and regardless of whether the debtor has filed objection to claim.

Rule 3015.1. Requirements for Local Form for Chapter 13 Plans.

This Rule sets out features required for all Local Forms for Chapter 13 Plans, including requirements as to consistency, formatting and content. If a Local Form does not comply with this rule then it cannot be used.

Rule 4003. Exemptions.

The change to this Rule is a new provision which permits a Chapter 12 or Chapter 13 debtor to seek avoidance of a lien impairing exemptions by motion or by Plan provision and specifies how such a Plan must be served.

Rule 5009. Closing Chapter 13 Cases; Order Declaring Lien Satisfied.

The proposed Rule modification is the addition of a procedure for a debtor in a Chapter 12 or Chapter 13 case to request an order declaring a secured claim satisfied and lien released under the terms of a confirmed Plan. Provides that such request is to be made by motion and served on the claimant as required by Rule 7004.

This blog is meant to be an overview of the major changes that are coming. It is not a complete list. As with anything having to do with bankruptcy, there are many exceptions to the general rules. As always, please make sure to reach out to your bankruptcy attorney in regards to how best to proceed in a specific case at (813) 676-9082 or email BradH@whhlaw.com.

The changes (again, assuming the likely approval by Congress and the Supreme Court) will take effect on December 1, 2017 and will apply to all bankruptcy cases commenced after that date and all pending cases “insofar as just and practicable.” What this means is that they will govern virtually all bankruptcy cases, including those filed prior to December 1, 2017, so be ready to apply them right away!

Brad Hissing, Esq.

Giving Back to Our Community and Our Own

April 7, 2017/in Articles/by Ted Hamilton

One of my personal core values has always been to give back to the community in whatever way I can. I am proud to say that the law firm of Wetherington Hamilton, P.A. has the same core value. Whether it be volunteering time for Meals on Wheels, volunteering at The Children’s Home, raising funds for The Children’s Home at our Cocktails for a Cause event, or raising funds for the American Cancer Society’s fight against breast cancer, Wetherington Hamilton definitely gives back!

Last summer I was diagnosed with stage 2, triple negative breast cancer. This is an aggressive form of breast cancer that requires major chemotherapy, surgery, and in my case, radiation as well. I could not have asked for more support from my employer and co-workers at Wetherington Hamilton. As a result of my diagnosis, our Estate Planning Attorney Elaine McGinnis, spearheaded our firm participation in the American Cancer Society’s Making Strides Against Breast Cancer walk in Tampa last October. Our firm team had over 60 members who walked that day, including my 88 year old father, who participated in his first 5K! More importantly, our team raised over $2,500.00 towards the fight against breast cancer. This has become quite personal to me, as you might imagine.

I am happy to report that my pathology report reflected pathologic complete remission, meaning that the cancer is totally gone! I am about to begin radiation and could not be more pleased to have returned to work full-time! I want to thank all of those in our community who participated in and contributed to the Making Strides Against Breast Cancer walk. I also want to thank everyone at Wetherington Hamilton for your continued support, not only of me, but your support for each and every community organization that our firm supports. Wetherington Hamilton, P.A. walks the walk and truly does give back!

Joan W. Wadler, Esq.

What is a Fraudulent Transfer?

March 6, 2017/in Articles, Debt Collection/by Ted Hamilton

Several years ago while looking for assets owned by a judgment debtor I discovered that he had recently transferred title to his Corvette to his daughter. It is unusual to find such an obvious example of a fraudulent transfer, but it was not difficult to recover the vehicle and apply it to the amount owed to my client.

Traditionally, a transfer of an asset is considered fraudulent if it is made to an “insider”, such as family member; for less than fair value; when the debtor had been sued or was threatened to be sued.

The law has also established other indicators that a transfer is fraudulent. These are known as “badges of fraud”. Some examples are: the debtor maintained possession or control of the asset; the transfer was concealed; or the transfer was of all of the debtor’s assets. Another example would be that a lien is created on property of the debtor, simply to keep it from being seized.

For corporate debts an officer who is in charge of a business may be held personally responsible if he pays himself before providing for payment to creditors. The officer is considered to hold property of the corporation “in trust” for payment to creditors of the corporation. If he pays himself and the corporation becomes insolvent, a creditor may try and recover against the officer personally. You often see it where it is clear that a business is about to go under and a person in charge of the business starts draining the assets, leaving the creditors out to dry.

Thomas K. Sciarrino Jr., Esq.

Why Mediate in Florida State Court Proceedings?

February 19, 2016/in Articles, General/by Ted Hamilton

Mediation is a voluntary, confidential process whereby the parties to a lawsuit or dispute gather with their respective counsel, if any, and a mediator with the goal of resolving their issues. The process is voluntary, although it is often court-ordered. A mediator is not a judge or decision maker; rather, a mediator is a neutral third party who facilitates communication between the parties.

So let’s break this down a bit. How can a court-ordered meditation be voluntary? In state court, if mediation is court-ordered, the parties to the action are required to appear. The process is voluntary – that is the parties are not required to reach an agreement. Generally, in Florida state courts, there is no good faith requirement for mediation. (Local rules and Federal Court rules may have different requirements regarding mediating in good faith). The parties must have full settlement authority and must comply with all court orders and rules regarding the proceedings. The process itself is voluntary and whether or not the parties reach an agreement depends upon the facts and circumstances of each case.

Usually, communications held during mediations are confidential, except as provided by law. The parties should be able to freely discuss the case during mediation without concern for having their words used against them at a later time. The rationale is to encourage open dialog throughout the process. If the parties reach agreement at mediation, a signed, written agreement is not confidential, unless it states otherwise.

The mediator’s role is not that of decision maker. Unlike a judge or arbitrator, the mediator acts as an impartial third party to facilitate or guide the mediation process. So, what is the point of mediation if the mediator isn’t making a ruling on the case? Mediation allows the opportunity for all parties to communicate freely and to have input into any potential resolution. Typically, if a judge or jury decides the case, at least one party will not be pleased with the outcome. If successful, mediation can save the time and expense of trial, with the parties having input into the resolution of their case.

Joan W. Wadler, Esq.

How to Choose a Lawyer in Florida

February 28, 2015/in Articles, General/by Ted Hamilton

With the excess of information at everyone’s finger tips, sometimes making any decision seems more complicated these days. Choosing the right lawyer in Florida for your needs is no exception. We are no longer flipping through the yellow pages or relying on radio ads to determine who to turn to if we have a legal problem. Instead, we turn to internet searches and the volumes of information that comes up on our screens. But how do you know if the first lawyer on the list is the best, or merely the one that paid the most to have their website pop-up first? What information should you be looking for when determining which lawyer will meet and may be even exceed your needs?

The first place to turn to is the Florida Bar. You always want to determine that the person you are talking to and hiring is an attorney. You can do this by going to The Florida Bar website at www.floridabar.org. Use the “Find a Lawyer” search engine and find the lawyer’s information, address, phone number and email to confirm their credentials.

Call the lawyers office and talk to their staff. Make sure they are friendly and accommodating. Set up an initial appointment with the lawyer (either via phone or in person) to make sure that you have communicated with the actual lawyer that will be handling your case and providing you services. If any lawyer is too busy to meet with you at the beginning stages of the business relationship, they may be too busy to meet all your needs as your relationship and case grows.

Also, consider the lawyer’s reputation. Do you know people who have worked with the firm before? Have you heard people praise an attorney’s work? Ask around. Someone you know may be working with an attorney that might be able to meet your needs as well.

You can also check the attorney’s discipline history. If an attorney has been professionally disciplined by the Florida Bar you can find that information on The Florida Bar’s website, as referenced above. Once you find the attorney’s page using the “Find a Lawyer” search engine, scroll down until you see the words “10 year discipline history.” If there is no discipline, the word “none” will appear to the right of the name. if there is a history, the word “yes” will appear, with a link to take you to the documents with additional information.

Remember, choosing the right attorney should make your life easier, whether professionally or personally. Finding a firm with a good reputation for both their legal knowledge, results, and customer service is a formula for success.

Kalei McElroy Blair, Esquire

The New Florida Limited Liability Company Act

January 22, 2014/in Articles, General/by Ted Hamilton

In the spring of 2013, the Governor of the State of Florida signed a new Limited Liability Company Act which took effect on January 1, 2014. Until January 1, 2015, Limited Liability Company’s (LLC’s) formed in Florida before January 1, 2014 will continue to be subject to the current law under Chapter 608 unless they elect to be governed by the new law after that date. The new law will apply to all LLC’s filed after January 1, 2014. After January 1, 2015 all LLC’s must adhere to the law. Some of the important changes included in the law are as follows:
• Defines more precisely the duties of members and managers and eliminates in the process the notion of “Managing Member”;
• Gives LLC’s the ability to assign authority or restricted authority to certain persons or groups in the LLC and authorizes the filing of Statements of Authority with the Florida Department of State to such effect;
• Adds more “non-waivable rules” regarding Operating Agreements. For Example, an Operating Agreement cannot call for waiver of certain rules including member’s right to seek judicial dissolution in certain situations and prohibiting indemnity rights for certain kinds of misconduct by the person seeking indemnification;
• Adding new provisions regarding service of process on all LLC’s and creating a new section of the Florida Statutes Chapter 48 that addresses such service of process;
• Retains the Olmstead Amendment made to the LLC Act two (2) years ago;
• Clarifies the rights and duties of the transferee of a membership interest;
• Changes the voting rights of members in certain circumstances;
• Disassociated members now have the right to disassociate at any time.

However, members who disassociate may be liable to the LLC for wrongful disassociation.

• Durivative Actions. Under the new law, a member may now maintain a durivative action if the other members do not take action within a reasonable time, not to exceed ninety (90) days. Furthermore, a demand is unnecessary if demand would be either futile or irreparable injury would result in waiting for other members to take action. The new act also provides procedures for the appointment of special litigation committee to investigate any durivative actions.
There are many other sections not addressed in this article. Please do not rely only on this article for legal advice. It is meant as a brief summary of the changes in the statute. Ultimately, a review of your LLC documents is recommended in light of the new law for all Florida Limited Liability Companies. If you have any further questions or would like further details on the law, please contact Theodore J. Hamilton at extension 14 in our office.

Limited Liability Companies in Florida

September 23, 2013/in Articles, General/by Ted Hamilton

For those intending to form a closely held operating business in Florida, the entity of choice, in most cases, will be a limited liability company (LLC) that elects to be taxed as a Subchapter S corporation.

Following the issuance of “check the box” regulations in 1997, eligible entities (including eligible LLCs) have been able to select their federal tax classification. Eligible entities, such as the LLC, may elect to be taxed as a C corporation, an S corporation, a partnership, or, in the case of single member LLCs, a disregarded entity. As a result, since 1997 practitioners have been able to select the best combination of state law attributes and federal tax treatment to achieve a legal structure suited to the particular needs of a business.

The LLC constitutes a hybrid structure that marries the benefits of an LLC (a function of state law) with those of an S corporation (a function of federal tax law). This marriage achieves three principal benefits: 1) protection of the owners’ interests in the company from their personal liabilities (“asset protection”); 2) protection of the assets of the owners from the liabilities of the enterprise (“limited liability”); and 3) the lowest federal employment tax liability for owners employed by the business. The LLC is the only Florida entity that provides all three of these benefits.

Asset Protection Benefit

Among the most material of these benefits is the protection provided by F.S. §608.433(4), which safeguards the membership interest of an LLC owner from loss by limiting a creditor to the remedy of a “charging order.” While a charging order provides a creditor with the rights of an assignee, which entitles a creditor to receive distributions to which the debtor-owner would otherwise have been entitled, the debtor-owner will continue to own its membership interest in the LLC and, otherwise, operate its business without interference from the creditor. The creditor cannot vote on business matters, inspect or copy business records, nor exercise any of the debtor-owner’s rights with respect to the management of the business. Conversely, the owners of a corporation (both S and C) have no similar benefit, as their creditors are not limited in their remedies to a charging order. Accordingly, the Florida LLC provides a distinct measure of “asset protection,” while the Florida corporation provides none.

Limited Liability Benefits

Of the limited liability entities in Florida offering both asset protection and limited liability, LLCs offer the most secure limited liability shield – a shield equivalent to that of a corporation. F.S. §608.701 provides that in any case in which a party seeks to pierce the veil of an LLC, the court must apply the same case law as would apply to the piercing of a corporate veil under similar circumstances. As a result of the Florida Supreme Court case Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla. 1984), which held that a corporate veil could not be pierced without a showing of fraud or an improper purpose, the limited liability shield of a Florida corporation is among the most difficult to pierce in the United States. Mere disregard of corporate formalities, inadequate capitalization, informal loan transactions, and similar poor practices will not justify piercing the corporate veil in Florida.

Federal Tax Benefits

Why should a closely held operating business formed as a Florida LLC elect taxation as an S corporation? Taxation as an S corporation offers two principal advantages. First, the Internal Revenue Code of 1986, as amended, provides that the profits and losses of an S corporation flow through to the owners in a manner similar to a partnership, thus avoiding double taxation. Second, employee-owners may be able to reduce federal employment taxes by as much as 15.3 percent on the portion of their income equal to or below $87,000 per year, and 2.9 percent on income in excess of $87,000. This tax strategy, which is a function of reducing wages and increasing distributions, is only available to entities taxed as S corporations.

Finally, until 2003, C corporations enjoyed an advantage over S corporations, since C corporations were the only federal income tax entity where the health insurance costs of owner-employees were fully deductible. Pursuant to Code §162(l), beginning in 2003, regardless of the taxing entity chosen, all self-employed individuals can deduct 100 percent of the amount paid for accident and health insurance premiums.

Conclusion

Because of superior asset protection, limited liability, and tax savings, a substantial majority of Florida operating businesses will be best served by an LLC.

*Adapted from The LLC Envelope, Florida Bar Journal, December 2003.