When the economy begins to slow, consumers often begin to fall behind in payments and businesses commonly turn to debt collection agencies, or attorneys, to obtain payment on past due invoices. While this is an unfortunate circumstance, both for creditors and debtors, it can be made much worse through abusive collection practices and FDCPA violations.
By: James D. Stone, III, Esq.
So you have made the decision to go through with a law suit against an individual or entity debtor that owes you money and are ready to effectuate service of process. But what happens when the debtor does not reside in Florida or is concealing its where abouts? Generally, Florida law requires that process be served personally upon a person. Fla. Stat. § 48.031(1)(a) (2008). However in some limited circumstances, Florida law permits service of process by substitute methods of service. These alternate methods of service are especially implicated in situations where attempts to locate a defendant fail. One of these methods is service upon the Secretary of State of Florida. However, this method of service is limited to specific circumstances defined by statute. To read more click the title. . .
By: Harry M. Wilson, IV, Esq. and James D. Stone, III
Sometimes, either intentionally or inadvertently, a debtor will fail to list a creditor or schedule a debt in a bankruptcy proceeding. When this happens the creditor can often be unaware of the proceedings and, as a result, miss the deadline for filing a proof of claim. However, a debt owed to a creditor who had neither notice nor knowledge of the bankruptcy in time to file a proof of claim or to file a complaint for determination of dischargeability of the debt under section 523 of the Bankruptcy Code will not be discharged. . . click the title to read more. . .
To do business in modern America, one almost necessarily has to engage in interstate commerce. In a city like Jacksonville, with its proximity to the Florida-Georgia border, one can easily see how anything from the sale of an automobile, to the award of a subcontract, or the hiring of an employee, could involve potential litigants from different states. If a dispute arises out of such an interstate transaction and litigation is eminent, an important question is what is the appropriate forum to file the complaint?
Assuming the plaintiff is a Florida corporation, the question of whether the complaint can be filed in Florida court hinges on the State’s power to enforce a judgment against the defendant. A state’s power to adjudicate a claim and enforce the judgment is limited by the due process clauses of the United States Constitution and by precedent. The test to determine if a state court has the power to enforce judgment over an out of state defendant corporation asks whether the defendant has certain minimum contacts with the forum state so that the suit does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. State of Wash., Office of Unemployment and Compensation, 326 U.S. 310,316 (1945).
By: Harry M. Wilson, IV, Esq. and James D. Stone, III
In these tough economic times many construction liens are often erased by superior mortgages, such as when the lender forecloses on the property. In the past this would often lead to the lienor being left without a way to collect if the project owner was insolvent. Florida Statute §713.3471 and a recent ruling in Whitehead v. Tyndall Federal Credit Union has, however, provided another avenue for a lienor to recover costs. To read more click the title. . .
By: Harry M. Wilson, IV, Esq. and James D. Stone, III
Everyone knows that economic times are hard right now. Collection lawsuits are on the rise and, as a result, courts are issuing more judgments. A judgment may be just a piece of paper but it transforms a “Plaintiff” into a “judgment creditor” with unique powers to try to collect the debt he or she is owed.
By: Emily C. Williams, Esq.
Due to the transient nature of individuals in today’s society, attorneys are frequently being employed to collect judgments that were obtained elsewhere. This is especially true for multi-licensed attorneys who practice in a state in close proximity to the state line of another. For the purposes of this discussion, I will analyze the procedural steps necessary to enforce a Florida Judgment in Georgia, and explain the difference in enforcing a foreign judgment under the Uniform Enforcement of Foreign Judgments Law and through domestication.
By: Harry M. Wilson, IV, Esq. and James D. Stone, III
While obtaining a judgment against a debtor that owes you money is an important victory, it is often not the final battle one fights against the debtor. Just as there are time limitations on your ability to file an action against a debtor, there are also time limitations to enforce a money judgment in Florida. While the general rule is that the life of a money judgment is 20 years in the state of Florida it is important to know the procedures for using the full 20 years.
As our firm represents many materials suppliers and site work contractors/subcontractors, we are often presented with payment issues that require us to pursue unconventional avenues of recovery to obtain payment. One area in which we have had a good success is through making claims on Agricultural Bonds through the Florida Department of Agriculture. According to Florida law, any person who is engaged within the state in the business of buying, receiving, soliciting, handling, or negotiating agricultural products from or for Florida producers, or their agents, must be licensed and bonded. The Bureau of Agricultural Dealer’s Licenses is responsible for the licensing of dealers in agricultural products. Per the Department of Agriculture, “Florida License and Bond Law is intended to facilitate the marketing of Florida agricultural products by encouraging a better understanding between buyers and sellers and by providing a marketplace that is relatively free of unfair trading practices and defaults. The purpose of the law is to help assure that the producers of products covered by the law receive proper accounting and payment for their products.” If you do business with nurseries, landscaping companies, or virtually anyone who deals in green goods and you like to get paid the money you are rightfully owed, this post should be required reading.
As the economy continues to tank and dead beat debtors begin to pass more and more bad checks, I have found it to be a prudent time to revisit the laws pertaining to writing bad checks in Florida. In general, the term ‘check’ means a draft, other than a documentary draft, payable on demand and drawn on a bank or a cashier’s check or teller’s check. An instrument may be a check even though it is described by another term, such as ‘money order.’ Fla. Stat. § 673.1041(6). A ‘draft,’ in reference to a check, is a three-party instrument by which the drawer order the drawee to pay money to the payee, and the drawee is a bank.
Fla. Stat. §68.065 (for civil actions to collect worthless checks, drafts, or orders of payment) allows for recovery of treble damages, service charges, attorneys’ fees, and costs if its provisions are not followed. Before litigation is initiated, the form of notice set forth in Fla. Stat. §68.065 must be delivered by certified or registered mail, or by first-class mail, evidenced by an affidavit of service of mail, to the maker or drawer of the check, draft, or order of payment. If notice is properly provided, the maker or drawer will be liable to the payee for, in addition to the amount owing on the check, damages of triple the amount owing, a statutory service charge based on the check amount, reasonable attorneys’ fees, and court costs. If the notice is sent via certified mail and the recipient refuses to claim the notice or sign the postal receipt, the statutory notice requirement is satisfied.