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Author: James O. Birr, III, Esq.

Debt Collection in Florida: Know the Rules

August 28, 2014 Professional Services Industry Legal Blog

By: James O. Birr, III, Esq. and Sterling Spencer
When it comes to collecting a consumer debt, individuals, businesses and attorneys’ must be familiar with the Florida Consumer Collection Practices Act (“FCCPA”) and its federal counterpart, the Fair Debt Collection Practices Act (“FDCPA”). Like the FDCPA, the FCCPA protects consumers from abusive, harassing, and unfair debt collection practices. This post addresses Florida federal court case law as to damages for violations of the FDCPA and FCCPA, as well as recent changes to the FCCPA, effective October 1, 2014.

Florida’s Civil Theft Statute

July 31, 2014 Professional Services Industry Legal Blog


James O. Birr, III

Florida’s Civil Theft statute is an attractive claim to many plaintiffs because, if successful, it allows recovery of treble damages and attorney fees. See 772.11 of the Florida Statutes. Civil theft claims can be asserted by individuals and businesses alike, and are meant to create civil liability for criminal practices that are violations of 812.012-812.037 or 825.103(1) of the Florida Statutes (i.e. crimes of theft, robbery, and exploitation of elderly persons). A party contemplating asserting a civil theft claim under Florida law must be aware of its nuances and pleading a proof requirements before asserting the claim.

Pay When Paid Provisions: Are you Actually Shifting the Risk

June 25, 2014 Construction Industry Legal Blog

Construction contracts contain many risk-shifting mechanisms. One such mechanism is the “pay when paid” provision that requires payment from one party before there is any requirement to pay another party. Typically, this contract provision is found in the contract between the general contractor and its subcontractors, as well as in the subcontractor’s contract with its subcontractors. If not properly worded, this risk shifting provision will not have its intended consequences.

Disgorgement of Funds by Unlicensed Parties

April 29, 2014 Professional Services Industry Legal Blog

Florida law requires certain types of persons to be licensed in order to do business. Lawyers, realtors, and even construction contractors are among those professions regulated by specific licensing requirements. So, what happens when a party unknowingly contracts with a person who is required to be licensed but is not? The penalties for doing business without the proper licensing are harsh, and can even result in criminal charges and the return of all monies paid (known as disgorgement). This post explores certain remedies for engaging an unlicensed person or entity.

Recovery of Attorneys’ Fees in Florida: Is it in Your Contract?

April 1, 2014 Professional Services Industry Legal Blog

The recovery of attorneys’ fees is an important consideration prior to initiating litigation. Under Florida law, a party can only recover its attorneys’ fees if there is a statutory or contractual basis for doing so. Trytek v. Gale Industries, Inc., 3 So. 3d 1194 (Fla. 2009). This posting focuses on a “prevailing party’s” contractual right to recover attorneys’ fees and a suggestion to improve contract language to recover all attorneys’ fees should you find yourself in litigation.

Construction Contracts: Six Key Provisions

February 25, 2014 Construction Industry Legal Blog

When negotiating construction contracts for residential or commercial projects, there are several key provisions to include and that require careful consideration. While this list is not exhaustive, parties to construction contracts must consider the provisions for scope of work, order of precedence, notice of claims, indemnification, insurance and dispute resolution.

Avoiding Problems on Your Next Construction Project

January 29, 2014 Construction Industry Legal Blog

If you are planning to hire a contractor in Florida to perform construction work, you must first do your homework. Many times, owners will hire a contractor without confirming the contractor is properly licensed and without knowing who is actually performing the work. Below are a few key issues to understand and consider before hiring anyone to perform construction work for you.

Terminating a Notice of Commencement in Florida: Owner and Lienor Beware

December 27, 2013 Construction Industry Legal Blog

The Florida Construction Lien Law is an intricate machine full of requirements and traps for the unwary. The notice of termination of notice of commencement (Notice of Termination) is no exception. For the construction project’s owner, the Notice of Termination is a sworn document from the owner. For the lienor, the Notice of Termination is a sign that something is happening on the project and, therefore, the lienor must act quickly to preserve the priority of its lien for amounts owed.

Condominium Association Official Records and Written Inquiries

December 5, 2013 Community Association Industry Legal Blog

Condominium associations in Florida often receive requests from unit owners to examine the “official records” of the association, as well as written inquiries seeking information from the association’s board. See Section 728.111(12) and 718.112(2)(a)2. of the Florida Statutes. The Florida Condominium Act empowers condominium unit owners to request such information, however, the scope of such requests inquiries is limited.

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