Author Archives: Charles B. Jimerson, Esq.
In Florida, fraudulent transfers fall under the Florida’s Uniform Fraudulent Transfer Act (“FUFTA”). The Florida statutes comprise the FUFTA, and the statutes lay out the elements needed to assert a FUFTA claim, as well the types of remedies that will be afforded when bringing a FUFTA claim. Read Full Post
AN OVERVIEW OF FLORIDA’S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT Part three of a three-part series This post is Part Three of a Three-Part Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) feature. Part One discussed who FDUTPA protects and … Read Full Post
What conduct has been prevented under FDUTPA? Exploring the factual boundaries of successful FDUPTA claims.
AN OVERVIEW OF FLORIDA’S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT Part two of a three-part series The first article in this continuing series on Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) examined the purpose of FUDTPA, who the act … Read Full Post
Eminent domain proceedings are legal proceedings brought by the government, or an entity acting on behalf of the government, to seize private property for public purposes. The government has the right to seize private property for public use only if the property owner receives full compensation. During the eminent domain proceedings, the issue typically turns on whether the landowner has received a fair appraisal in order to receive full compensation for land. Oftentimes, a property is not properly appraised and just compensation is not offered. While the following list below is not an exclusive list, these are common deficiencies that landowners and landowner attorneys can look for when evaluating the adequacy of the government’s real estate valuation. Read Full Post
When entering into a commercial construction contract to build a commercial building, landowners should be aware of certain contract issues that can cause future legal problems. This article is designed to address some of the more common issues seen in commercial construction contracts, and what landowners should pay attention to before entering into any contracts for the construction of a commercial building. Read Full Post
Once the creditor obtains a decree from the court that the debtor made a fraudulent transfer, the creditor may collect on its claim under Florida’s Uniform Fraudulent Transfer Act (“FUFTA”), which provides creditors with various remedies. See Charles B. Jimerson’s blog post on the various remedies under FUFTA, Remedies for Creditors Under FUFTA Chapter 726 – Part I: Who May Be Liable. While the fundamental remedy under FUFTA is to set aside a fraudulent transfer, creditors may be entitled to compensatory damages as well. However, like all remedies under FUFTA, compensatory damages may be limited, or even unavailable, due to the equitable principles underlying the Act. Read Full Post
Service of process is likely an issue about which many attorneys and parties don’t give much thought; it’s a standard procedure conducted hundreds if not thousands of times a day across the country, and is usually done through a professional process server. However, when attorneys deviate from the standard procedure of sending a lawsuit to a process server and allowing them to effectuate service, whether due to cost or strategic considerations, it is easy to run afoul of the Florida and Federal Rules of Civil Procedure. Read Full Post
Elements of Proof for Fraudulent Transfers in Florida: How to Determine if a Transfer Was Fraudulent
Creditors may become frustrated when they discover a debtor has engaged in an unfair transaction that hampers their ability to collect payment. However, creditors are not without remedy in the event that there has been some funny business with the debtor’s finances. Regardless of the debtor’s intentions behind the questionable transaction, Florida’s Uniform Fraudulent Transfer Act (“FUFTA”) permits courts to set aside transfers that are either actually or constructively fraudulent. Of course, many creditors and attorneys are aware that FUFTA is a “powerful remedy.” See Brandon C. Meadow’s in-depth article, Are Florida’s Fraudulent Transfer Claims Subject to Equitable Tolling? Yet many Florida attorneys may be unaware that a transfer was fraudulent until it is too late. Therefore, Florida attorneys must acquire a thorough understanding of FUFTA in order to ensure their clients’ interests are fully protected. This article provides guidance on establishing a prima facie case for both actual and constructive fraud under FUFTA. Read Full Post
After entering a participation agreement, a once promising loan sometimes becomes a problem loan once the borrower defaults. Following default, both the lead and participating banks always assess collectability. If the parties find the borrower is uncollectible based upon changes in circumstances, flaws in the underwriting or borrower fraud, it leads business partners to evaluate their own relationship and the finger pointing often commences. Having purchased a worthless participation interest, the participating bank sometimes seeks creative ways to relieve itself from its obligations, despite the very one-sided terms that comprise most all participation agreements. The question we often get is, does a borrower’s fraud relieve the participant from its obligations in a participating agreement, particularly when the lead bank should have noticed the fraud in their underwriting? This article will discuss common theories of recovery used by participating banks in cases of borrower fraud, and how the likelihood of success for such claims is almost entirely determined by the express terms of the participation agreement. Read Full Post
Involuntary bankruptcy is a legal proceeding creditors may use to force a debtor into bankruptcy, rather than a debtor voluntarily seeking bankruptcy protection on his or her own behalf. Creditors seeking involuntary bankruptcy must file a petition in the bankruptcy court, and the debtor has the opportunity to defend against being forced into bankruptcy.
Involuntary petitions, even if ultimately dismissed, can have a powerfully negative impact on an alleged debtor. See In re Reid, 773 F.2d 945, 946 (7th Cir. 1985); In re Gills Creek Parkway Assocs., L.P., 194 B.R. 59, 64 (Bankr. D.S.C. 1995). Fortunately, alleged debtors are not without defense and remedy, and involuntary petitions can be just as harmful to creditors as they are to alleged debtors. See In re Global Energies, LLC, 763 F.3d 1341, 1350 (11th Cir. 2014). This is especially true in instances where courts grant damages and attorneys’ fees upon dismissal of an involuntary petition. This blog is Part 2 in a two-part series on defending against involuntary bankruptcies. Part 1 set forth the basics of an involuntary bankruptcy. This part expands on the arsenal of remedies and strategies for defending against an involuntary bankruptcy petition.
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