Monthly Archives: August 2012

Contractor Negligence in a Florida Construction Defect Case

Part I:  Elements and Duty Construction defects are a problem in Florida.  In an environment that is hot, humid, and stormy, defective construction is magnified often causing damaging water leaks, harmful mold intrusion and amongst other things, a serious disruption … Read Full Post

CATEGORY: Florida Construction Industry Law Blog Practice Areas:

Special Considerations for Bringing a Foreclosure Action by a Junior Lienholder

In a standard foreclosure action, the lienholder with a first position of priority files suit to foreclose out all junior lienholders and recover the outstanding balance on a promissory note secured by the mortgage.  But what happens when a junior … Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas:

Protecting documents given to testifying experts

In preparation for trial, expert witnesses are often retained and briefed based upon reports and documents provided to them from counsel. Two types of work product may be used to prepare documents and internal memorandum which are subsequently given to an expert witness: 1) fact work product, and 2) opinion work product. If memorandum prepared by a law firm in anticipation of litigation contains the attorney’s opinions relating to potential theories of liabilities, references to the expert’s opinions, and factual summaries of his client’s records, the attorney’s personal notes and records about the proposed arguments constitute protected work product. Whealton v. Marshall, et al., 631 So. 2d 323, 325 (Fla. 4th DCA 1994) (holding the law firm’s internal memorandum used in preparation for litigation were not discoverable work product). Read Full Post

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Negating Defenses of Procedural Unconscionability in Loan Documents

Defaulted borrowers often attempt to argue that the waiver of defenses language included in loan documents is unconscionable and therefore unenforceable. However, for a contract to be held to be unenforceable under Florida law, the contract must be both procedurally and substantively unconscionable. See Golden v. Mobile Oil Corp., 882 F.2d 490, 493 (11th Cir. 1989); Gainesville Health Care Center v. Weston, 857 So. 2d 278, 284 (Fla. 1 st DCA 2003). If a contract is found to be either procedurally or substantively conscionable, then the contract is enforceable. See Eldridge v. Integrated Health Services, Inc., 805 So. 2d 982 (Fla. 2d DCA 2001)(emphasis added). Read Full Post

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Why and what are banks prohibited from disclosing Suspicious Activity Reports (SAR) of Fraud by Federal Law?

In 1992, Congress passed the Annunzio-Wylie Anti-Money Laundering Act (the “Act”) which requires banks to report suspicious activities to the appropriate federal authorities. Cotton v. Privatebank and Trust Co., 235 P. Supp. 2d 809, 812 (N.D. Ill. 2002). The laudable goal of the requirements contained in the Act was to encourage banks to make such reports related to criminal activities. Id. In fact, the stated purpose of the Act is to:
require certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, or in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism. 31 U.S.C § 5311. Read Full Post

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