boxed
pattern
#666666
https://www.whhlaw.com/wp-content/themes/zap/
https://www.whhlaw.com/
#5a7c96
style2
813 225 1918
1010 N. Florida Ave. Tampa, Fl 33602

14
Aug

Least Sophisticated ConsumerThe Fair Debt Collection Practices Act (FDCPA) is the principal federal statute that governs the conduct of debt collectors and prohibits many kinds of abusive or deceptive behavior as set forth in the Act. In Florida, the Florida Consumer Collection Practices Act (FCCPA) prohibits much of the same actions. Both the FDCPA and FCCPA permit debtors to file lawsuits against debt collectors who they perceive are engaging in abusive or deceptive tactics to collect on a debt. One issue that often comes up in these cases is whether communications by the debt collector to the debtor are misleading. The standard that the Courts use in interpreting whether a communication is misleading is whether such communication would be misleading to the “least sophisticated consumer.”

So, who is the “least sophisticated consumer”? The Eleventh Circuit Court of Appeals considered that issue in the case of Helman v. Bank of America, 2017 WL 1350728 (11th Cir. April 12, 2017). Gayle Helman was a discharged debtor who received a mortgage statement from Bank of America. The mortgage statement was marked “FOR INFORMATIONAL PURPOSES” and also contained a disclosure indicating that Bank of America’s records indicated that the debt was discharged in bankruptcy and therefore no longer had a personal obligation to pay the debt. The debtor argued that the mortgage statement, despite these disclosures, was confusing and misleading to the least sophisticated consumer as it implied that a personal obligation to repay the debt remained.

On appeal, the Eleventh Circuit determined that the least-sophisticated-consumer standard was an objective standard that did not require proof of actual deception. However, the Court also determined that in construing what was misleading or deceptive to the least sophisticated consumer, such least sophisticated consumer must be considered to possess a rudimentary amount of information (for example, the effect of a bankruptcy discharge) and the ability to read a collection notice with common-sense care. The Court indicated that the least-sophisticated-consumer standard would protect the gullible, but that it would not extend to “bizarre or idiosyncratic interpretations” by a debtor. A reasonableness requirement remains when considering whether a communication was misleading or deceptive even to a least sophisticated consumer.

Note that this is a brief overview of some of the provisions of the FDCPA and FCCPA. There are important differences between the two Acts and some actions that might not be actionable under one may be actionable under the other. This area of the law is complex and you should seek the advice of an attorney if you have questions about this area of the law.

 

Brad Hissing is a Bankruptcy Attorney with over 26 years of experience in representing creditors, Trustees and other parties in bankruptcy cases. He has extensive experience in Creditors Rights and Insolvency matters in both consumer and Chapter 11 commercial cases. He can be reached at BradH@whhlaw.com or by phone at (813) 676-9075.

07
Aug

electronic wills actIn 2017, the Florida Legislature passed the Florida Electronic Wills Act, which authorizes electronic wills,electronic will execution, and the probate of electronic wills of both resident and non-residents in the State of Florida, [House Bill 277]. Recently, Governor Rick Scott vetoed the bill.

Currently, the required formalities to execute a valid Last Will and Testament are that:

  • It must be in writing;
  • It must be signed at the end by the testator; and
  • The signing must be in the presence of two witnesses.

Additionally, a Will must be “self-proven” to be admitted to Florida probate court, which means that the testator and witnesses’ signatures must be notarized. A Will that is not self-proven is still valid in Florida, but additional steps must be taken for the Will to be admitted to court. To alleviate the current necessities of a “pen and ink” signature, and all parties being present to execute, witness, and notarize a Will, the Electronic Will Act provides that a person may create a Will electronically, sign it electronically, and it may be witnessed electronically as well.

The proponents of the Florida Electronic Wills Act argue that people procrastinate in signing their Wills due to the difficulty in obtaining the required number of witnesses and a notary public. Additionally, most contracts may now be signed electronically, and finally, if creating and executing a Will became more accessible and less expensive, more people would have the opportunity to execute a Will.

The Governor, however, vetoed the bill for several reasons. First, the Governor points out the he oversees the appointment of notaries in the state and therefore, is charged with ensuring notaries guard the most vulnerable citizens against fraud and exploitation. He states that the notary provisions in the bill “do not adequately ensure authentication of the parties to the transaction”. Further, he suggests concerns regarding probate. Currently, venue is proper in Florida if a decedent is a Florida resident, or if a decedent owns real property in Florida. The proposed bill allows an electronic will to be probated in Florida merely if it is created and stored in Florida. Finally, “delayed implementation of remote witnessing, remote notarization, and nonresident venue provisions” are also concerns. For the foregoing reasons, the Governor vetoed the bill. To read the Governor’s veto letter in its entirety, click here.

Obviously, the Electronic Wills Act is a concern among estate planning lawyers. Anyone can type their wishes, sign a piece of paper, and determine whether it must be witnessed and notarized. Most people do not realize that executing a Will does not avoid probate. A lawyer is not retained only to type up a document and notarize it. The concern is not losing business; it is that consumers of electronic wills may sign a document that is not in their best interest. An estate-planning lawyer provides counsel and advice regarding probate avoidance, whether a trust is appropriate, different options for asset distribution, and who may best serve in fiduciary roles. Additionally, a lawyer can explain the nuances of Florida law, for example, the specific nature of homestead property, rights of a surviving spouse, and how to make a distribution to a special needs beneficiary or a Medicaid recipient. The consequences of executing a Will without this information may be quite severe.

People work their whole lives to provide for the next generation or to make a charitable contribution, explain their end of life wishes, and leave a legacy. Often, during consultations, clients will say, “I never thought of that”, or “I didn’t realize that”, or “Can we have some time to think about this further?” Consulting is an invaluable part of the process and should not be rushed. Additionally, the estate-planning lawyer will often also probate the Will of his or her clients, if a probate is necessary. A continuing relationship between the lawyer and the client’s children is comforting to many families. Finally, electronic will creation and execution opens the door to fraudulent documents and fraudulent signatures, which may be more difficult to prove and ultimately, more costly and time consuming for the family.

It is undeniable that legal work will continue to move to the online arena, but it is necessary that all of the details are resolved before something as important as the Electronic Will Act becomes law.

 

Estate Planning Attorney

Elaine N. McGinnis is an established Estate Planning attorney with nearly fifteen years of experience handling Estate Planning, Probate, Trust Administration and Elder Law cases. Elaine’s clients depend on her to understand their individual needs, discuss goals, and prepare the documents appropriate for each case. Call today to schedule a consultation at (813) 676-9082 or via email to marketing@whhlaw.com.

 

28
Jul

personally liable

There are situations where you can be held personally liable even though it is not your intention be responsible.  Two circumstances where this often arises in contract situations are when you are representing another as an agent or where you are signing a personal guaranty.

If you are an agent or the representative for someone, you can be held personally liable.  The law generally holds that an agent is responsible under a contract if the principal is not disclosed.  Therefore, if you enter a contract for someone else (the principal) make sure you fully disclose that you are entering into that contract in a representative capacity.  You should make sure that the principal is fully disclosed (named).  It may not be enough to just indicate that you are entering a contract as an agent or representative if the principal is not fully disclosed.  Do not rely on the other party to be aware that there is a principal, even if you believe that they should be.  To protect yourself, be sure to spell it out clearly that you are the agent and indicate the name of the principal.  Also make sure that the principal is a real person or legal entity.  If you represent a person or business that does not actually exist, you could be held personally liable.

Another situation where unexpected personal liability occurs is if you sign a personal guaranty.  Where this most often occurs is if you sign on behalf of a corporation.  Many times people will sign a guaranty and designate that they are signing as president or an officer of the corporation.  The law is that if the corporation is already responsible, it is meaningless for it to guaranty its own debt.  Therefore, an officer who guarantees the debt of the corporation becomes personally liable and adding a title does not relieve the personal obligations.

These can be tricky situations and may result in personal liability when there was no real intention to give it.  Of course, if you have any doubt, call the experienced attorneys at Wetherington Hamilton who are familiar with these situations.  You may save a big headache in the future.

 

Thomas K. Sciarrino, Jr., Esq. is a veteran collections attorney with 38 years of experience in handling Commercial Litigation, Collections, and Creditor’s Rights. He is the head of the collections department at Wetherington Hamilton, P.A. In addition to practicing law, he has also lectured on creditor’s right before various business and professional groups.

seta

Subscribe to our mailing list

* indicates required
default
Loading posts...
magnifier
#5C5C5C
on
loading
off