Rusty Law

Small Claims Court

$5,000 is the limit to small claims court, but the patience is seemingly boundless of a small claims court judge.  

It only costs $300 to file a small claim, but that does not shortcut court procedures.  All the jobs of the court have to be fulfilled, and the judge has to extract properly information.  The trial goes on no matter how well-educated defendants are regarding legal procedure.  

The Florida Bar has a new focus on public education that stretches beyond middle school civics class.  Public education is an important defense for judges who must follow the law in making decisions, even when those decisions are not popular.  Regardless of the size of the claim, the importance of a fair and impartial court system remains.  The more knowledge the public has of this system and the procedures to ensure it, the more efficient and effective our third branch of government can be.  

Small claims court handles a lot of credit card debt.  Most of the defendants admit to the debt.  Most of them have not asked a lawyer’s opinion on the matter, which is another failure of education.  

Whether it is a small claim or foreclosure debt, have an attorney look at your case.  There may be a defense to the claim.  At least use the information issued with the summons to contact a legal aid office.  Get some counsel.  

Value of a Real Estate Agent

Everyone wants to buy a foreclosure because it is a deal, but there are all kinds of surprises in the pudding, as my brother says.  You need a doctor to prescribe a tranquilizer for the transaction, but with over 40 million Americans without health insurance, better use a real estate agent.  

“There’s a sucker born every minute,” that does not mean you have to be one.  P. T. Barnum is popularly cited for that quote, though that is not what he said.  He was misquoted, which is a very bad thing in real estate.  

The first case you read in law school regarding real estate law is Pierson v. Post concerning who gets to keep the dead fox, the guy who chased it or Pierson who stepped in and shot it.  Post gets the fox.  He did the work to chase it so he gets to keep it; however, commissioned real estate sales do not work that way without a contract.  

It is a free market, and a buyer can work with a real estate agent for a couple of months, then decide to purchase directly from a developer or through another agent.  There is no legal issue against this, though it is not fair to the agent who has spent the two months with the buyer.  There is no legal obligation, but there is an ethical issue the buyer may not be aware of.  

The best way to gain access to the real estate market is to get someone who knows what the market is, an agent who can advise you on pricing and other considerations.  I recommend having someone on your side.  First of all, make sure you like your real estate agent, that you have a good working relationship, then understand what that relationship is.  Your agent is spending time, effort, and his or her own money on a contingency to help you find a property, and then oversee the transaction through the closing.  

My office works closely with real estate agent Jim Smith on a lot of short sales in St. Augustine and the surrounding area.  Jim Smith is at Century 21 St. Augustine Properties, and can be reached at (904) 797-6000.  

Be careful out there.  There is a lot of opportunity in real estate and a lot of pitfalls.  Now is a good time to have a real estate agent on your side.  

Circus of Service Animals

When is a boa constrictor NOT a service animal?  Answer:  When it’s a feather boa.  The Americans with Disabilities Act provides a guideline that leaves open a circus of interpretations.  

The Department of Transportation singles out spiders as prohibited from aircraft passenger compartments, meaning you cannot bring Charlotte to spell out your preference for coffee, tea, or milk.  You might be okay with a trumpeter swan, provided you are not flying north out of season.  

A boa constrictor is clearly defined as a snake, but the legal definition of a service animal is a big top of possibilities.  “The ADA defines a service animal as any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability” (www.ada.gov).  Proposed revised regulations would eliminate farm and exotic circus animals from duty.  Hedgehogs, bull frogs, and iguanas would be exempt from service.  

Service providers such as hotels, movie theaters, and restaurants have opened their doors for years to myriad of possibilities.  From the trained cockroach to the friendly ferret, almost anything goes in the service animal industry.  Service animals are supposed to have certification; however, that is irrelevant because one, the service provider cannot deny access if the disabled person is unable to produce certification, and two, there is no regulation for certification.  

If Justice is blind, let’s hope she does not use a seeing-eye armadillo to help her cross the road.  

Ripe Mellon

Can you sue the Treasury Department for the Recession?  The short answer is No.  However, two investors are suing the US Government for the failed oversight of Bernie Maddoff’s fabulous scheme, claiming Uncle Sam did not behave in an avuncular manner to protect his nieces and nephews amid many tips that things were contrary to right.  The Madoff scandal was one of those overripe situations.  

A ripe melon should sound hollow when thumped but be heavy for its size so you know it is not empty.  

Investors at Bank of New York Mellon thumped.  Then they asked the bank to reduce risk through sales and restructuring.  While this cost $4.8 billion in investment losses, it should encourage BNY Mellon to vine ripen and be more robust against future losses.  

In the meantime, if you missed the Bernie Madoff auction at World Golf Village yesterday, the Madoff helpline is standing by to liquidate your fine art or jewelry at an upcoming sale.  At this point, you may have to make the best of a bad melon.  

One For All

The American Bar Association recommends a minimum of 50 hours of pro bono work per year for attorneys.  That is not just a suggestion; it is an opportunity for professional responsibility.  In the current economic climate, there is no better time to offer a wealth of justice to those who have neither.  

The American Bar Association recently cited that 80 percent of poor people who need legal help in civil matters do not receive it.  This affects foreclosure, bankruptcy, family and custody cases.  While number of pro bono hours is on a slow rise nationally, it has stagnated in Florida, where Bar membership increases by about 2,500 annually.  The current campaign of the Florida Bar encourages lawyers to take one pro bono case.     

Pro bono work is an opportunity for community involvement, laced with networking, and it is also a chance to practice areas of law in which you might not otherwise participate.  There is a large helping of mutual benefit for the client and the attorney in pro bono work.  The challenge to lawyers is to expand your network, expand your experience, and expand justice by one case.  

Attorneys seeking pro bono opportunities in St. Johns County may contact Megan Wall of St. Johns County Legal Aid at (904) 827-9921.  

Chicken And Egg - Jobless Recovery

The economy relies on consumer spending, which relies on employment, which relies on consumer spending, etc., thus creating the classic conundrum:  which came first, the chicken or the egg? 

The economy is always greener on the other side of a recession, but consumers have chickened out on spending, and companies will not cross the road to invest in the other side.  Consumer spending makes up 70 percent of the US economy; however, unemployment in Florida is already over 10 percent, reaching up to touch the falling rate of revolving credit.  Meanwhile, companies are squeezing profits out of cost cuts, and they are reluctant toward rehiring.  

Spending is all tied up in caution tape for both consumers and companies, leaving our economy in a fowl feedback loop.  Perhaps the relevant question is not “Which came first?” but rather “Which will go first?”  

Economic Lift

A fighter pilot can maneuver at 9g’s, and a falcon can pull out of a dive at 25g’s.  The question is, how many g’s can our economy withstand in its recovery?  

The credit crisis has put a drag on our economy.  We have been in a long dive now, starting with the subprime mortgages, and spiraling through the general real estate market at air speeds faster than our lungs can engulf oxygen.  

The Fed has piloted us into thicker air with HAMP and HARP, and TARP for the banks, etc., slowing descent.  We are going to have to fly our credit kites at lower altitudes.  For now, spending is grounded.  We are looking for that wingtip, that slight maneuver in tail feathers, to suck air back up underneath and give us lift.  

In the meantime, my phone now operates with 3G, which makes life much better.  

Passacaglia

A passacaglia is a musical form with a bass line at a walking pace, allowing for a creative line to dance above.  The bass line is written in a slow repetition, while the upper line is light, playful, with an improvised air.  A passacaglia sounds like a grandparent walking, while a child dances down the street.  Similarly, foreclosure defense is a pedestrian approach; it slows the pace, giving room for solutions to be explored and implemented.  

The purpose of the foreclosure defense is not to defer the inevitable.  In hearings, most of the defenses I present are technicalities, they are correct, but they are technicalities.  Often I use the procedural rules to give the client the time needed to accomplish a loan modification.  The defense slows the foreclosure action to a walking pace, allowing the client time to review options and to execute a solution.  

A couple of weeks ago I mentioned a family working through Saint Johns Housing Partnership towards a loan modification.  The family was dealing with the medical hardship of their son being born with a heart condition.  They were trying to modify their loan so they could handle their mortgage as well as their medical bills.  Thank you again to all of those who contributed to help them put that modification in place.  I brought up this family as an example.  There are others like them out there who need more time.  

There may be more than 70% of those facing foreclosure who never try to save their homes.  Listen for the music.  Find your place to dance.  

Real Estate Trades

A real estate trade is not the same as wife swapping, but it does involve a specialized service, matching people and their property interests.  

Nobody fully appreciates the very hard work realtors do, and this particular area of expertise in the real estate market is another example.  Real estate trading is not a standard MLS; it involves a two-sided transaction, not just one, but does not cost any more than a regular transaction, and can cost less.  

A real estate trade involves a direct exchange of properties, generally with a simultaneous closing.  It entails very close matching and a large dose of mutual benefit.  

The legal issues of real estate trading are as follows:  disclosure disclosure disclosure.  (Comes right after “location location location.”)  

A dollar only has value because we say it does.  If someone has a home for sale in Jacksonville and wants to move to St. Augustine, while a homeowner in St. Augustine is trying to move to Jacksonville, then that exchange of properties could have great value for both parties.  Providing that disclosure is fully satisfied, a real estate trade can be a very good, and equitable arrangement.     

Libby Wiseman is a resource for real estate trades in Jacksonville and St. Augustine.  I recently spoke with her on “Land Title Talk,” which airs Wednesdays at 7:30 on WFOY 1240 AM.  If you missed our conversation, you can learn more about real estate trades at www.libbywiseman.com, or contact Libby at 1-800-853-0771.  

Vocal Length

Your vocal length is not very long if you refuse to say anything.  A foreclosure defense allows your case to speak up in articulate decibels and be heard by a judge.  No one should go through a foreclosure silently. 

Loan modifications and short sales take time; meanwhile, your case is being pushed forward by the bank.  While the bank may be working with you on a modification or short sale, the bank outsources its legal action, so the foreclosure is continuing without regard to your negotiation.  You may think you are speaking clearly, but there is a second conversation going that may deliver a lis pendens.  

You can answer this two-sided dialogue if you match the bank’s strategy and outsource your legal representation.  With a foreclosure defense attorney, you have two voices which can speak at once in harmony for your interest.  Keep talking with your bank, and let your lawyer handle the legal case against you.  Strengthen your vocal reach.  Let the attorney give you the time you need to negotiate a modification or to complete a short sale.