Homeowners Forgiven for Debts They No Longer Owe to the Banks on their Mortgages

The New York Times has reported on homeowners who are receiving notices of forgiveness of second mortgages that were previously discharged in bankruptcy. The banks apparently claim that even if they were discharged in bankruptcy, the bank retains a lien on the property. This is a major problem for homeowners, as the banks are wrongfully sending these letters to the homeowner, while also sending a notification of forgiveness of debt to the IRS. Should the laws change concerning forgiveness of debt by January, homeowners could end up in a tax mess concerning the supposed forgiveness of debt. This will entail enlisting the services of their attorney and/or accountant to remedy the situation, which also incurs expense.

According to the Times article, the incentive of the banks in sending out these letters, to even those who no longer owe anything to the bank, is that under the global settlement with the States’ Attorney General, the banks receive a credit for each loan they modify. If the banks are obtaining credits for modifying debts they are not owed, it seems we are back to another situation similar to that which got us in this situation – banks with lack of accountability in writing loans, servicing them, and keeping track of the proper and necessary recording, ownership and servicing paperwork.

What to Do If You Are Served With A Lawsuit

What to do if you are Served with a Lawsuit
By Michael D. Stewart, Esq.
Law Offices of Michael D. Stewart
www.TheMiamiLaw.com
www.GotPersonalinjury.com
866-438-6574
If you are served with a lawsuit in Florida, you generally have twenty (20) days to prepare and file an Answer to that lawsuit admitting or denying the allegations contained therein. Once a process server comes to your house or place of business and hands you the lawsuit papers (“serves you”) the clock begins to run.

1. The first thing you need to do is contact a lawyer who can advise you of your rights and explain what you are being sued for. Many lawyers offer free consultations at this point. As lawsuits are often written in “legalize”, the attorney can explain the causes of action or claims contained in the suit against you. The attorney can question you concerning the allegations contained in the lawsuit and can determine what defenses you might have to the lawsuit.

2. The lawyer can also determine after speaking with you whether you might have a counterclaim against the person or company suing you which needs to be raised. This would be as if you were suing the person or company yourself. The lawyer can also advise you as to Affirmative Defenses as to why you are not liable under the lawsuit, and can also prepare both procedural defenses, as well as substantive defenses to the lawsuit. Procedural defenses would be something like if you are being sued under a contract but the person suing you (the Plaintiff) did not attach a copy of the contract, preventing you from being able to adequately defend yourself.

3. Your lawyer would then prepare and serve a copy of your Answer to the lawsuit on the Plaintiff. Other times, such as in the example above where the Plaintiff failed to attach a copy of the contract to the lawsuit, the lawyer could file a Motion to Dismiss the lawsuit, which could then force the Plaintiff to either abandon the suit or necessitate them redoing the lawsuit and refilling it. Other reasons the Plaintiff’s suit might be subject to a Motion to Dismiss would be where the Plaintiff filed the lawsuit in the wrong court or in the wrong state, or if they filed it against the wrong party. Additionally, as there is a certain time limit within which to file a lawsuit, called the Statute of Limitations, it may be the case that the Plaintiff has not filed the lawsuit within the Statute of Limitations and is therefore time barred from continuing with the suit.

4. Other times, a motion may be made to transfer a case to a different court, such as Federal Court, or to transfer the case to an Arbitrator. Arbitration clauses are becoming more common and force the parties to seek out a third-party arbitrator, who is not a court, and will hear the evidence and make a decision on the case, like a judge would.

5. In some cases that are extremely urgent, one or the other party can file a motion for an Injunction, to prevent a party from committing acts it is currently engaged in.

6. If your lawyer has filed an Answer to the Complaint, together with a Counterclaim on your behalf, the other side would then need to file a response to your Counterclaim, as if they were the Defendant.

7. Usually, the lawyers from both sides will consult with each other to discuss the merits of their client’s respective cases and to determine whether a settlement might be possible. If not, the case will usually proceed with Discovery.

8. In Discovery, both sides are allowed to serve the other will a variety of documents and to take the testimony of important witness.

9. Important written Discovery documents include Requests for Admission, where you demand that the other side admit or deny, under oath, the questions you pose.

10. Another important Discovery document is an Interrogatory where you demand that the other side, under oath, answer your questions.

11. A third Discovery document is the Request for Production, where your lawyer will demand that the other side provide you with documents that are relevant to your case or tend to lead to other evidence which will be important to the case.

12. One of the other important Discovery devices is the Deposition. In a deposition, your lawyer will call in an important witness, usually to his or her office, and ask that witness questions under oath concerning the case. Present is a court reporter who transcribes everything that is said on the record, for later use at trial if necessary.

13. Throughout the foregoing, either side can file Motions, which are essentially documents asking the court to do something, be it to compel a witness to show up for a deposition, or to dismiss certain aspects of the claims which from the evidence presented are no longer litigable.

14. Once the evidence is gathered and the parties have their trial strategies set, they may, or be told to by the judge, enter into a non-binding mediation. Here, an independent mediator will be chosen by the parties who will here each sides position and work to try to bring the parties closer to an agreement on the issues in the case. The mediators goal is to ultimately assist in resolving the case before trial.

15. Should mediation, or other modes of settlement talks be unsuccessful, your lawyer and the other sides lawyer will prepare for trial. The judge will likely have a pre-trial conference in his or her chambers where the judge will inquire as to each party’s case. The parties will have already prepared and presented to the judge a list of witnesses each party intends to call at trial, the likely evidence presented, any expert witnesses that will be called, the amount of time they will need for the trial, etc.

16. Then the trial to decide the initial outcome (the outcome can often be appealed to a higher court on certain controverted issues).

What to Do if You are Served With a Lawsuit

What to do if you are Served with a Lawsuit
By Michael D. Stewart, Esq.
Law Offices of Michael D. Stewart
www.TheMiamiLaw.com
www.GotPersonalinjury.com
866-438-6574
If you are served with a lawsuit in Florida, you generally have twenty (20) days to prepare and file an Answer to that lawsuit admitting or denying the allegations contained therein. Once a process server comes to your house or place of business and hands you the lawsuit papers (“serves you”) the clock begins to run.

1. The first thing you need to do is contact a lawyer who can advise you of your rights and explain what you are being sued for. Many lawyers offer free consultations at this point. As lawsuits are often written in “legalize”, the attorney can explain the causes of action or claims contained in the suit against you. The attorney can question you concerning the allegations contained in the lawsuit and can determine what defenses you might have to the lawsuit.

2. The lawyer can also determine after speaking with you whether you might have a counterclaim against the person or company suing you which needs to be raised. This would be as if you were suing the person or company yourself. The lawyer can also advise you as to Affirmative Defenses as to why you are not liable under the lawsuit, and can also prepare both procedural defenses, as well as substantive defenses to the lawsuit. Procedural defenses would be something like if you are being sued under a contract but the person suing you (the Plaintiff) did not attach a copy of the contract, preventing you from being able to adequately defend yourself.

3. Your lawyer would then prepare and serve a copy of your Answer to the lawsuit on the Plaintiff. Other times, such as in the example above where the Plaintiff failed to attach a copy of the contract to the lawsuit, the lawyer could file a Motion to Dismiss the lawsuit, which could then force the Plaintiff to either abandon the suit or necessitate them redoing the lawsuit and refilling it. Other reasons the Plaintiff’s suit might be subject to a Motion to Dismiss would be where the Plaintiff filed the lawsuit in the wrong court or in the wrong state, or if they filed it against the wrong party. Additionally, as there is a certain time limit within which to file a lawsuit, called the Statute of Limitations, it may be the case that the Plaintiff has not filed the lawsuit within the Statute of Limitations and is therefore time barred from continuing with the suit.

4. Other times, a motion may be made to transfer a case to a different court, such as Federal Court, or to transfer the case to an Arbitrator. Arbitration clauses are becoming more common and force the parties to seek out a third-party arbitrator, who is not a court, and will hear the evidence and make a decision on the case, like a judge would.

5. In some cases that are extremely urgent, one or the other party can file a motion for an Injunction, to prevent a party from committing acts it is currently engaged in.

6. If your lawyer has filed an Answer to the Complaint, together with a Counterclaim on your behalf, the other side would then need to file a response to your Counterclaim, as if they were the Defendant.

7. Usually, the lawyers from both sides will consult with each other to discuss the merits of their client’s respective cases and to determine whether a settlement might be possible. If not, the case will usually proceed with Discovery.

8. In Discovery, both sides are allowed to serve the other will a variety of documents and to take the testimony of important witness.

9. Important written Discovery documents include Requests for Admission, where you demand that the other side admit or deny, under oath, the questions you pose.

10. Another important Discovery document is an Interrogatory where you demand that the other side, under oath, answer your questions.

11. A third Discovery document is the Request for Production, where your lawyer will demand that the other side provide you with documents that are relevant to your case or tend to lead to other evidence which will be important to the case.

12. One of the other important Discovery devices is the Deposition. In a deposition, your lawyer will call in an important witness, usually to his or her office, and ask that witness questions under oath concerning the case. Present is a court reporter who transcribes everything that is said on the record, for later use at trial if necessary.

13. Throughout the foregoing, either side can file Motions, which are essentially documents asking the court to do something, be it to compel a witness to show up for a deposition, or to dismiss certain aspects of the claims which from the evidence presented are no longer litigable.

14. Once the evidence is gathered and the parties have their trial strategies set, they may, or be told to by the judge, enter into a non-binding mediation. Here, an independent mediator will be chosen by the parties who will here each sides position and work to try to bring the parties closer to an agreement on the issues in the case. The mediators goal is to ultimately assist in resolving the case before trial.

15. Should mediation, or other modes of settlement talks be unsuccessful, your lawyer and the other sides lawyer will prepare for trial. The judge will likely have a pre-trial conference in his or her chambers where the judge will inquire as to each party’s case. The parties will have already prepared and presented to the judge a list of witnesses each party intends to call at trial, the likely evidence presented, any expert witnesses that will be called, the amount of time they will need for the trial, etc.

16. Then the trial to decide the initial outcome (the outcome can often be appealed to a higher court on certain controverted issues).

What to do if you have been injured in a personal injury matter

What to do if you are Injured in an Accident
By Michael D. Stewart, Esq.
Law Offices of Michael D. Stewart
www.TheMiamiLaw.com
www.GotPersonalinjury.com
866-438-6574
If you are injured in an accident in Florida, there are a number of things you must do to preserve your personal injury claim.
1. Immediately seek medical assistance. If you are in a car accident you should call an ambulance if necessary as well as the police.

2. Once your medical needs have been met, you need to call an attorney to preserve your case and insure that your medical needs continue to be addressed as well as the myriad other issues that will arise after you have been injured. If you are unable to call an attorney, a relative or friend should do so for you. The attorney will often visit you in the hospital or in your home to discuss your case, and to determine a course of action, with respect to your case and to your medical treatment.

3. If you have been injured through the fault of another, you may have your medical expenses covered. In addition, you may be entitled to Pain and Suffering Damages, both past and present, Lost Working Wages, Lost Future Earnings, and the like. In addition, depending on the severity of the injury, your spouse may be entitled to compensation for loss of your services.

4. In order to have a valid personally injury claim, you and your lawyer will need to document how the injury occurred, who was at fault – and to what percentage, and the amount of compensation to which you are entitled.

5. Your attorney will immediately ascertain whether the party at fault has insurance to help cover your injury and the amount of the policy.

6. The attorney will need to document the events leading up to the accident, the accident itself, and will need to manage your medical and other bills to present a claim to the insurance adjuster for compensation.

7. Some of the important factors in a personal injury matter are whether the party at fault had a duty to protect against injuries of this type or whether they were the cause of such injuries, and whether the party at fault should be held liable, or whether some other intervening factor relieves this party of their liability.

8. To document your case, the attorney will investigate where the accident occurred and the conditions of the location of the accident. For example, if the accident occurred in a shopping center and was a slip and fall accident, the attorney will seek video tape evidence, witness evidence, and your own testimony concerning how you slipped and what caused this.

9. Another important issue in this context will be whether the shopping center was on notice as to a dangerous condition and whether they had the time or ability to make this condition safe. Thus if there was a spill in the aisle of a grocery store, it will be important to determine how long that spill was present, what the substance was, whether it caused the slip and fall, whether workers at the store knew of the spill, what actions they took to clean up the spill, if any, such as putting up a warning sign, and whether these types of incidences happened in the past.

Conversely, the defendant’s lawyers will argue that the store had no notice of the spill, that the store took corrective action as soon as they learned of the spill, that there was no way for the store to prevent the spill, that the plaintiff was negligent themself and should have avoided the spill as it was obvious.

After the facts, have been ascertained your lawyer will submit a demand to the Insurance adjuster demanding a certain amount of compensation. Your attorney will negotiate to get you the largest settlement possible.

However, if settlement is not an option your attorney will file a lawsuit to obtain the compensation you deserve.

As always, there is no fee until you recover money.

What to do when you are pulled over by an Officer in a Traffic Stop

What to do if you are pulled over by a Police Officer in a Traffic Stop
By Michael D. Stewart, Esq.
Law Offices of Michael D. Stewart
www.TheMiamiLaw.com
www.TicketChallenger.com
866-438-6574

Be pulled over by the police can often be a harrowing experience, whether for a speeding ticket or for driving under the influence. The following are some rules of the road to remember if you are pulled over by an officer.
1. Put on your turn signal. Once you see that the police officer has turned on his lights or has signaled for you to pull over, turn on your turn signal, slow down, and find a safe area to pull your vehicle over. Do not slam on your brakes or attempt to pull over too quickly. Do however show the officer that you are complying with his or her directions and find a safe spot to gently pull over.

2. Turn off the ignition. Once you have safely pulled over, turn off the ignition to your vehicle and take out the keys, placing them on the seat or the dashboard of the vehicle. This will assure the officer that you are not a danger. The officer will then approach the vehicle, oftentimes on the passenger side to avoid traffic.

3. Leave your seatbelt on. Leaving the seatbelt on can prevent issues concerning whether you were originally wearing one, as seatbelt laws could increase your ticket.

4. Turn off the radio. Be prepared to pay attention to the officer.

5. Do not scramble to obtain your documents from the glove box until the officer has approached the vehicle. The officer does not know you and may believe that you are reaching for a weapon or hiding evidence.

6. Listen to the officer’s questions. The officer might as you if you know why you were stopped. Do not admit guilt, which can later be used against you if you challenge your ticket in court. Politely say that you are unaware of why you were stopped. If the officer asks you how fast you were going, do not answer unless you honestly believe you were going slower than the speed limit. If you challenge your ticket in court your lawyer will not want to have to defend against admissions you made at the scene.

7. Do make mental notes about the scene of the infraction. Take great care to try to remember how fast you were going, the weather conditions, the traffic conditions, and any other relevant facts that can be of assistance to your lawyer in defending your case.

8. If the officer decides to give you a ticket, accept it and, if necessary, sign where indicated. This is not an admission of guilt, rather an indication that you have received the ticket. The ticket will give you options. You can pay a fee and plead guilty by mail, which could result in points on your license. Alternatively, you can decide to challenge the ticket. It is usually a good idea to hire a lawyer to challenge your ticket, particularly if the ticket was issued in a city you do not live in. Once you have hired a lawyer to handle your ticket, you will probably not need to show up in court. The lawyer will go to court for you and attempt to keep points of your license and get the case dismissed, or prevent points from going on your license by agreeing to traffic school.

9. Searches. Generally the police need a warrant to search your vehicle or you. If the officer asks you if he or she may search your vehicle, you are allowed to say no. Thereafter, the officer may abide by your answer, or if they have a suspicion or cause that meets the legal standard, may search your person or vehicle anyways. If you have been illegally searched, your lawyer can protect your constitutional rights and prevent any contraband the officer finds from an illegal search from being used against you in court.

10. Driving Under the Influence. If you have been drinking and are pulled over, you are not required to advise the officer of how many drinks you have had. Additionally, while the officer may ask you to conduct field sobriety tests, such as walking a straight line, you are not required to comply. Further, often, if an officer asks you to make statements, such as reciting the alphabet backwards, these statements could be testamentary in nature, and would require the officer to first provide you with your Miranda Rights “You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney….”

11. HGN Testing – Horizontal Gaze Nystagmus. This is where the officer uses a device such as a pen and asked you to follow its movement. You can refuse this procedure, however, if you agree to the procedure, your attorney can argue against the strength of the evidence as this, as the other field sobriety tests, are not 100% accurate.

12. Generally the officer cannot arrest you based on only one of these tests, but a combination of tests.

13. Breathalyzer. In states such as Florida, refusal to blow into a Breathalyzer is reason for the state to suspend your license. Even if you do blow, if you do not blow hard enough for the machine to register the breath, this can also be seen as a “refusal”. If you do blow into the Breathalyzer, your attorney can challenge the results on a scientific basis that the Breathalyzer or the admission of the breath test were defective.

14. Administrative hearing. It is imperative that you obtain an attorney immediately after an arrest for DUI as you only have a matter of days to set and attend an administrative hearing to attempt to retain your right to drive pending the prosecution of your DUI case.

15. The Criminal Case. Your attorney will prepare and argue your criminal case for you. If you decide to settle the matter with the state, there are a number of minimum mandatory penalties in Florida, and this can be a costly option. If you proceed to trial on your case, the state will need to prove you were under the influence “Beyond a Reasonable Doubt”.