Business and Tax Lawyer Blog

In recent blog posts, we discussed how foreclosure rates have increased from a year ago. However, homes in some stage of foreclosure are down nearly 42% from last November.

One of the major reasons fewer homes are in foreclosure has to do with lenders not being able sell these homes at foreclosure auctions. Therefore, lenders are forced to maintain possession of the property and continue paying property taxes and other expenses on these homes. More and more lenders have offered alternatives to foreclosure such as deed in lieu of foreclosure and short sale agreements.

If the borrower qualifies for a deed in lieu of foreclosure, the lender will offer to release the borrower from personal liability on the mortgage if the borrower(s) sign over the deed to the property.

Short sale agreements have to do with the lender accepting offers from buyers in which the offer is lower than what the borrower owes on the mortgage. Afterwards, the lender should release the borrower from any personal liability on the mortgage. If you are currently facing foreclosure you should consult with an experienced attorney to discuss your options. To learn more about this article, please visit Jax foreclosures drop 42% in November.

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Instead of using focus groups, conduct your own research. Ricardo De La Blanca Brigati, chief executive officer of DLB group, a $10 million marketing firm that does business in the U.S., Spain, and Latin America, answers questions about marketing to minorities.

Too many companies are making little effort to have a minority spokesperson therefore missing a potential market for their services or products. Companies seeking to tap into those expansion markets celebrate the best parts of minorities’ lives and ethnicity by using attractive marketing. If not familiar with ways to reach out, companies conduct observation and research on their own or hire consultants to assist them. For small and midsize businesses other options include using word of mouth at events and promotions which can be a less expensive marketing tool.

To learn more about this article, visit What Companies Get Wrong When Marketing to Minorities.

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As many Jacksonville residential homeowner's are aware, most homes are and have been declining in value for a while now. Many Florida residents are "underwater" on their homes. Underwater means they owe more on the house than the house is worth.

The Obama administration passed legislation designed to help Americans with the foreclosure crisis. The Home Affordable Modification Program (HAMP) was passed in 2009 and, if eligible, the applicant can apply to have the terms of the mortgage adjusted to something more affordable.

Government agencies have helped finance the program and, for the most part, servicers seem to approve the program. If you are not eligible for HAMP, there may be other alternatives offered by your mortgage provider. If you have questions about foreclosure or bankruptcy, you should consult and experienced attorney. To learn more about options for troubled homeowners, please visit 44% of Jax properties underwater.

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A recent Commerce Department report indicates that new online privacy legislation is coming. It is expected to have a substantial impact on all technology with internet capabilities. It is also geared at social media sites, such as Facebook and MySpace.

The legislation is hoping to have voluntary compliance from online companies but also addresses industry standards that will be enforced if need be. The growing concern for personal information breaches and companies marketing to minors leads the cause for the proposed legislation. It will be interesting to see what penalties and consequences will be imposed on violators should this legislation pass. Privacy rights exist in this country and if those rights are violated you may have a cause of action against the party in violation. There are federal and state laws that protect privacy rights and if you feel your rights have been compromised, you should contact an experienced attorney. To learn more about this article, please visit, New report calls for online privacy bill of rights.

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In a recent blog post, we discussed how major American credit card companies are freezing transactions involving the Wikileak company. Wikileak allegedly disclosed classified information about U.S. intelligence and, in doing so, breached U.S. privacy laws.

Now, Wikileak supporters are allegedly firing back by downloading an extremely large amount of spam software and sending it at hostile businesses in an effort to collect data. It is also alleged that Wikileak supprters are hacking into government systems and bringing them down altogether.

For more on this issue see Spam downloads surge among WikiLeaks supporters.

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Today, in the United States, it can be difficult to obtain a patent. Patents grant the holder the exclusive right to prevent others from making, using, or selling the patented idea without the patent holder’s permission. So, it is important for the patent holder to be vigilant in order to stay aware of potential infringers.

The tests to determine infringement vary from country to country, and differ based on whether it’s a claim of direct or indirect infringement. Currently, the Untied States recognizes that someone is guilty of directly infringing a patent by making, using, selling, or importing in the US an patented invention without authority, during the term of that patent. A party may still be guilty of infringement without any actual knowledge of a preexisting patent. This in known as indirect infringement and a claim can arise when the violator has an idea that a patent may exist, but neglects to perform adequate due-diligence.

Remedies for infringement may not only include actual damages, but also punitive damages, as well as equitable relief.

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Former Attorney General, Bill McCollum, and his replacement, Pam Bondi, are suing the Environmental Protection Agency (EPA) in an attempt to stop the EPA from preempting a new environmental bill passed by the Florida legislature in 2009.

The state's Attorney General and Agriculture Commissioner seek to preserve the state's right of control of its own clean water programs. There is also a concern that if the EPA is successful in preempting the new Florida law, it will cost the State an estimated $1.3 billion, just in the Northeast Florida area, in order to abide by the new EPA clean water guidelines.

The EPA is concerned with the amount of pollution entering Florida waterways and wants to limit nutrient deposits in fear of its dangers to humans and animals. Many of the nutrients the EPA are concerned with are fertilizers and other toxins aimed at killing algae blooms. The State has been given 15 months to incorporate the new EPA guidelines.

To learn more about this article, visit Florida sues EPA over clean water rules.

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Powerhouse credit card companies like Visa and Mastercard are declining transactions associated with Wikileaks - specifically, refusing to process donations to the organization. Wikileaks has been under investigation for allegedly releasing privacy information and its founder is in British custody for an assortment of legal concerns. Wikileaks' payment processor is now suing those companies that are refusing to complete donation transactions with Wikileaks alleging this practice is crippling the business.

However, while no specific information has been released by the credit card companies regarding the money frozen in Wikileaks' accounts, they appear to be undertaking due diligence to ensure that the transactions are legal. American credit card companies have come under extreme scrutiny for not doing due diligence in the past. Maybe this is a sign that they have learned their lesson from making questionable business decisions in the past and are recognizing a need to take preventative acts to avoid federal fines and penalties. U.S. companies do not wish to appear to be financially contributing to any company that is allegedly leaking private customer information.

To read more about this story, please visit WikiLeaks' payment processor to sue card companies.

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The Bankruptcy Trustee in the Bernie Madoff saga has filed a lawsuit against JP Morgan Chase for $6.4 billion dollars. The Trustee believes JP had involvement in Madoff's scheme of defrauding investors. The suit was filed in a New York Bankruptcy Court.

The lawsuit seeks to recover over $1 billion in profits and fees and over $5 billion in damages. If the Trustee is able to recover adequate damages, disgruntled Madoff investors may be able to receive some of the funds they lost in investing with Madoff.

The Trustee alleges JP Morgan should have known not to accept fees and profits because it was aware or should have been aware of suspicious activity by Madoff.

To learn more about this article, visit Madoff trustee sues JPMorgan, others for $6.4B.

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Technology Research Corp. of Tampa has acquired assets of a product line associated with TDI Products Inc.,of Atlantic Beach, Florida. Assets of the product line, Shoreline Reel, were sold to TRC for an undisclosed amount but included intellectual property rights, inventories and customer relationships.

TRC specializes in power distribution and power management solutions for not only military personnel but also commercial customers. The sale of a business or part of a busines can be very complex. In order to make sure all areas of the sale are covered from a legal standpoint, you should consult an attorney before finalizing any sale, lease, or contract. The attorney can help anticipate future problems that you may otherwise have not expected and adjust the contract to meet those needs. To learn more about this acquisition, visit TDI Products of Atlantic Beach is sold.

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A federal court has ordered Jammie Thomas-Rasset to pay $1.5 million for illegally sharing online music through Kazaa. The Recording Industry Association of America says Thomas-Rasset shared over 1,700 songs but they have chosen only to sue over 24. She has been in front of three different juries and each jury has found the same result, willful infringement. Federal law allows the copyright holder to sue for statutory or actual damages.

The claimant can seek anywhere between $750-$30,000 for each infringing act or up to $150,000 for each willful act. If the infringing activity began before the copyright was registered with the U.S. Copyright Office, then only actual damages can be sought.

Actual damages usually include the copyright's decline in market value because of the infringement. Claimants can show lost profits through their own financial statements. Ms. Thomas-Rasset's attorney says they are planning on appealing the judgments and that these amounts of damages are unconstitutional.

To learn more about this article, visit Atty: MN woman can't pay for sharing songs.

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September 2010 saw over a 1.5% increase in foreclosure filings from September 2009 in the Jacksonville area. However, the percentage of real estate owned (REO) status increased as well. All this means is when a lender forecloses on a home and doesn't sell the property at an auction, the lender maintains possession of the property and it becomes REO status. There are many options available to avoid foreclosure that your lender may or may not offer.

1) Loan Modification- Your lender will ask you certain information and determine whether or not you qualify for a modification of your terms. This could involve lowering your interest rate or rolling late fees and payments back into your principal mortgage balance.

2) Deed in lieu of foreclosure - Basically, you give your lender the deed to your home and they release you from liability - i.e., agree to not hold you personally liable moving forward.

3) Reaffirmation in Bankruptcy - This is where the lender will require you to sign an agreement which will hold you personally responsible if you default on the loan. While
Bankruptcy stops the foreclosure process for a period of time, the lender can ask the bankruptcy court for relief from the automatic stay and require you to keep making payments although you are in bankruptcy.

To learn more about this article, please visit Jax foreclosures up 1.6% in September.

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Buying a franchise is an important decision and can be a complicated process. The Federal Trade Commission regulates franchise agreements and relationships between franchsiors and franchisees.

Many states have enacted laws requiring additional disclosures and specify how franchise operations within the state are taxed. Florida disclosure requirments imitate the FTC requirements.

The FTC is very involved in making sure franchisors disclose vital information to franchisees before buying into a franchise. The FTC requires the franchisor to disclose the following matters: parents, predecessors, and affiliate entities; business experience; possible or current litigation; bankruptcy; initial fees; general fees; estimated initial investment requirements; restrictions on sources of products and services; franchisee's obligations; financing; franchisor's assistance, advertising, computer systems, and training; trademarks, patents, copyrights and propriety information; obligations to participate in actual operation of the franchise business; restrictions on what the franchisee may sell; renewal, termination, transfer and dispute resolution; relationships with any public figures; financing performance representations; outlets and franchise information; financial statements; contracts; and transactional receipts related to the franchise.

In addition, if you are looking into purchasing a franchise that offers motor fuel for sale, consignment, or distribution in commerce, the franchise relationship must abide by the Petroleum Marketing Practices Act. This Act governs termination and nonrenewal of franchise agreements. You can find more information about FTC regulations at Disclosure Requirments and Prohibitions Concerning Franchising and Business Opportunity Ventures.

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The First Amendment provides us with broad protection with respect to Freedom of Speech. However, if someone carelessly or maliciously makes an untrue statement about you or your business, you may be entitled to compensation for damages to your good name.

Defamation is the communication of a statement that makes a claim, expressly or implied to be factual, that may give a business, product, or individual a negative image. Such statements can be made verbally (slander), or in writing (libel).

To successfully pursue a defamation claim, the claimant must establish: (1) a false statement of fact about another; (2) publication of that statement to a third-party; (3) a degree of fault connected to the defendant; and (4) harm or damage to the claimant.

In some cases, the claimant need only prove that the defendant published the statement to any third party. This is known as defamation per se, of which there are four categories: (1) accusing someone of a crime; (2) alleging someone has a loathsome disease; (3) adversely reflecting on a person's fitness to conduct their business or trade; and (4) imputing serious sexual misconduct.

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A St. Augustine woman has been federally indicted for running a Ponzi scheme involving her investment company. Prosecutors allege over $100 million was involved in Lydia Cladek's scheme.

Cladek, president and sole sharholder of Lydia Cladek, Inc., reportedly accepted funds from investors and told them their investments would be invested in high end car notes. Cladek promised she would purchase the notes, handle them, and if the note was defaulted upon then repossess the vehicle and collect on any deficiencies. However, prosecutors allege she did not purchase every note she said she would purchase and used a majority of the investments she received to finance her personal lifestyle.

Cladek could face up to 20 years in prison and over $3 million in fines. The lesson to this story is be skeptical of who you invest money with. Ask to see financial documents and company records. Check out the company's business ratings with the Better Business Bureau (BBB). Check to see if they are an "active" company at sunbiz.org. Due diligence by potential investors provides the best defense against the type of activities alleged in this case.

To read more about this story visit $100M St. Augustine Ponzi scheme alleged.

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In a recent post, we discussed the possibility of the NFLPA "locking out" and not having an NFL season next year. Well, the NBA (National Basketball Association) may not be far behind.

The current NBA Collective Bargaining Agreement (CBA) is set to expire next summer. If a new CBA is not agreed upon, then NBA fans may not have a season next year. NBA owners are hoping to implement structured player salary caps, limit rookie pay scales, and decrease overall revenues owed to players.

The NBAPA (on behalf of the players) is pointing out recent record ticket sales, endorsement deals, and merchandise revenues and may oppose the owners on the above issues. Just as the NFL owners are financially preparing for a 2011 lockout, it is reported that so now are NBA owners. They are reportedly asking for extensions on loans and deferrment periods. The owners could be doing this in anticipation of the possibility that they might not have these revenue streams if there is no season. Likewise, the NBAPA is reportedly advising its members (players) to save their money and prepare to live off of what they've made in the past for next year. As mentioned in the NFL post, as next summer's deadline approaches and both sides are in a time crunch, expect negotiations to heat up.

To learn more about this article visit, `99 percent' sure NBA lockout looms.

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Generally, an individual is immune from contract claims if the individual is a corporate officer or shareholder of a corporation and the contract was being made based on the individual's corporate status.

However, plaintiffs may have the opportunity to sue an individual for breach of contract and other types of claims in an individual capacity despite the individual acting within his or her corporate capacity. Florida recognizes "piercing the corporate veil" claims and will "pierce the veil" where the corporation or subsidiary is willfully designed to defraud or mislead creditors. In that instance an individual is alleged to be an "alter ego" of the corporation and thus personally liable for certain acts made by the corporation.

Also, courts may look to the amount of control a "related" entity may have over the entity being sued to determine whether they are actually "separate" entities.

If a court determines that a plaintiff has properly brought an action in "piercing the veil," then an individual officer or shareholder can be named in the complaint and could become personally liable. In addition, in certain circumstances, corporate officers can be found personally liable in tort actions (injury claims), even while acting within the scope of employment. Normal tort element requirments will apply and the individual may be unable to use the corporate shield to avoid liability. In order for a plaintiff to succeed on a tort claim, the plaintiff must show:

(1) The defendant owed a duty to the plaintiff
(2) The defendant breached that duty
(3) The defendant's breach was the actual or proximate cause for plaintiff's injury
(4) The plaintiff must have suffered damages.

All four elements must be present for a plaintiff to prevail on a tort claim.

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