Florida Foreclosure Surplus: Supreme Court Clarifies Deadline to Make a Claim

foreclosure surplus

On September 6, 2018, the Supreme Court of Florida, reconciled a conflict that existed between the appellate district courts of the state, as to when was the trigger date for filing a claim to a surplus from a foreclosure sale.  In the case styled as the Bank of New York Mellon v. Glenville, a dispute arose between the former owners of certain real property at foreclosure and a junior lienholder over who was entitled to a portion of surplus funds resulting from a judicial foreclosure sale of the property formerly owned by the former owner.  In Glenville, Florida’s high court held that the requirement, which is governed by the Florida Statute, which states that a claim to payment of any surplus funds from a foreclosure sale must be filed with the clerk of the court within sixty days after the sale begins upon the clerk’s issuance of the certificate of disbursements.  Two Florida district courts of appeals’ positions were vacated and/or quashed as a result of the Glenville decision, which now clarifies the deadline statewide.

ERIC N. ASSOULINE, ESQ.

PLEASE NOTE OUR NEW MIAMI ADDRESS

Miami Tower, 100 SE 2nd Street, Suite 3105, Miami, Florida 33131

 Intellectual Property, Labor & Employment Law,  Real Estate, International Dispute Resolution, Commercial Litigation, Corporate Law, and Bankruptcy

Miami · Ft. Lauderdale · Boca Raton

Leave a comment

Filed under Judgments, Litigation, Real Estate

A QUEEN, A KING AND PRINCE WALK INTO A BAR…

trusts and estates

Estate planning is not a joke and, as discussed in Jason’s last blog post, is something that the majority of Americans fail to do.  In this post, I am going to discuss the Queen of Soul, the King of Pop, Prince and Tim Conway (♪♫♪♫ one of these ones is not like the other) and how a proper estate plan would have helped in each of their cases.

In an ideal estate plan, a person is creating several documents that will assist their fiduciaries not only in the event of that person’s death, but also in the event that said person were to become incapacitated.

The Queen

Aretha Franklin, known to many as “the Queen of Soul” died this month. Similar to Prince who passed away in 2016, according to court documents filed by her sons, Aretha Franklin died intestate.  This means that she died without having prepared a Will or a Trust and it is now up to the Probate Court and laws of the State in which she resided to determine who her ultimate beneficiaries are, not to mention who the Personal Representative (executor) will be.  This will likely expose her estate to a long and expensive battle to settle her estate, which would more than likely have been avoided had Aretha shown some R-E-S-P-E-C-T to her entertainment attorney, who was allegedly after her to prepare her estate plan for a number of years.

The Prince

The estate of Prince (was unmarried and had no children at the time of his death) has been embroiled in those long and costly legal battles over his estate, as multiple people claiming to be his heirs came forward before a Court determination. Those heirs have apparently not been able to agree about certain business decisions, complicating an already complex process and resulting in litigation as the estate has worked to capitalize on the Prince’s work and holdings subsequent to his death.  Again, these issues that are now being litigated and will be for years to come would likely have been avoidable with a proper estate plan. (See the Estate of soul legend, Ike Turner, which has been litigated for over 11 years and is still going!)

The King

We have discussed the Queen and Prince, but what about the King?  When Michael Jackson died unexpectedly on June 25, 2009, he left behind three minor children.  This requires a Guardianship to be established on behalf of the minor children.  Fortunately, the “King of Pop” created an estate plan including a Last Will and Testament and a Revocable Living Trust.

An integral part of an estate plan includes making provisions for who is going to be the Guardian of and thus responsible for the care of minor children. Michael Jackson’s mother, Katherine Jackson, is designated in his Will to serve as the guardian for his minor children.  While this is fine on paper, because Debbie Rowe, who is the natural parent of two of Jackson’s three children, was still alive, absent court intervention, she would be the presumptive guardian of those two children. Ultimately, Rowe and Katherine Jackson reached a settlement that allowed Katherine Jackson to serve as the guardian for all three of the children, and she still serves as their guardian today.

The Jester

In addition to Guardianships created for minor children, it is often necessary to create Guardianships for incapacitated adults.  Adult Guardianships are usually costly proceedings, which are mostly avoidable by creating a Trust, which includes plans for what should occur in the event of a person’s incapacity and designates a Successor Trustee to you to act on your behalf. According to the internet (which is never wrong…), comedian Tim Conway is battling dementia and his wife and daughter (from a prior marriage) are at odds over his medical treatment, resulting in his daughter petitioning the Court to be appointed Guardian of the 84 year old former star of the Carol Burnett Show.  In her Petition to the Court Conway’s daughter states that Conway cannot “properly provide for his personal needs for physical health, food, and clothing” and is “almost entirely unresponsive.”

As mentioned earlier in this post, the creation of a Trust hopefully eliminates the need for the appointment of a Guardian.  However, that is not always the case.  Sometimes Guardianship is unavoidable.  In Florida, a good estate plan will include a “Declaration Naming Preneed Guardian”. In the event that a Guardianship is necessary, this document allows you to tell the Court who you want to be your Guardian. If  such a document were prepared by Tim Conway, this would have likely eliminated the upcoming fight between his wife and daughter over who will be his Guardian as the Court would already have indication as to his preference.

Royal Conclusion

As you can see, this “Royal Family” could have avoided numerous pitfalls with a little advance estate planning.  If you need a Last Will and Testament, Revocable Living Trust, Declaration Naming Preneed Guardian or any other document, which will help you avoid these situations, contact me to set up a conference to discuss your estate planning needs.

 

Jason Steinman, Esq.

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: JLS@assoulineberlowe.com

http://www.assoulineberlowe.com/

Leave a comment

Filed under Trusts & Estates

Bankruptcy Update: 11th Circuit Strikes the “Remain Unpaid” Element from the New Value Defense to Preference Action

00247192

On August 14, 2018, Court of Appeals for the Eleventh Circuit (which controls all Florida bankruptcy courts), ruled that certain language in a prior ruling from 1988 was dicta and not binding, and established a new landscape for defending against a preferential transfer claim through a “new value” defense.

In the past, under the authority of Charisma Investment Company, N.V. v. Airport Systems, Inc. (In re Jet Florida System, Inc.), 841 F.2d 1082 (11th Cir. 1988), the Eleventh Circuit was believed to be of the opinion that an offset against preference liability, for new value provided to a debtor, which were made within the preference period, could only be asserted to the extent that any new value extended to the debtor “remained unpaid” as of the date the bankruptcy petition was filed.

However, under the new Blue Bell decision, the Eleventh Circuit held that the language in Charisma was only dicta, not binding, and not accurate.  Therefore, going forward, new value need not remain unpaid as of the time of the bankruptcy petition.

This decision is important because it will eliminate the disincentive that creditors may have in extending credit to a struggling debtor, which was mentioned in the Blue Bell decision.

ERIC N. ASSOULINE, ESQ.

PLEASE NOTE OUR NEW MIAMI ADDRESS

Miami Tower, 100 SE 2nd Street, Suite 3105, Miami, Florida 33131

 Intellectual Property, Labor & Employment Law,  Real Estate, International Dispute Resolution, Commercial Litigation, Corporate Law, and Bankruptcy

Miami · Ft. Lauderdale · Boca Raton

 

Leave a comment

Filed under Bankruptcy, BK, Uncategorized

National Make-A-Will Month!

person writing on white book

Photo by rawpixel.com on Pexels.com

There is literally never a better time for you to create your estate plan. August is National Make-A-Will Month! Who knew? Why not celebrate by creating an estate plan.

A Will is one of several documents in a recommended individualized estate plan. It is important that you work with a lawyer experienced in estate planning to be sure your estate plan covers certain major issues, including but not limited to:

  1. Who do you want to be the Personal Representative (“PR”) of your estate? The PR is in charge of carrying out your directions and wishes as expressed in the Will. The PR will also pay any outstanding debts and distribute assets as you express in the document.
  2. Who do you want to be the legal guardians for your minor children until they become adults (age 18), if something were happen to you?
  3. What do you want done with both your tangible and intangible property?

I cannot emphasize how important it is to have a clearly written estate plan.  Leaving your family and friends without a valid Will in place can result in confusion as to who is to be the proper guardian of your minor children, can result in descendants of yours receiving assets from your estate which you may  not have intended them to be the beneficiary of and often further results in litigation.

Without a Will, the probate court is forced to name a Personal Representative (a/k/a an executor) of your Estate and there is the possibility that the appointed individual is not who you would have chosen. Why let someone else decide who has control over distributing your Estate when you can make that choice yourself?

A Gallup poll taken in 2015 indicated that only forty-four (44) percent of Americans say they have a Will that describes how they would like their money and estate handled after their death. Therefore, if you already have a Will (and other necessary estate planning documents) you are better prepared for the inevitable than over one-half of Americans. Yet, just because you created an estate plan at one point does not mean that it keeps up with your life changes (or that it is valid in the state your reside).

While estate plans never expire, for your Will to be most effective it needs to be reviewed at least semi-annually and updated as needed. Common scenarios for estate plan revisions can be any major life event such as: a death in the family, change in marital status, birth of a child, major changes in financial situation, and moving out of state. Your estate plan should also be updated as your goals change. For example, you may want to alter the amounts of inheritance or increase/decrease charitable bequests.

Let’s celebrate National Make-A-Will Month together!  Call me to set up a conference to discuss your estate planning needs.

Jason Steinman, Esq.

ASSOULINE & BERLOWE, P.A.

Leave a comment

Filed under New Partner, Trusts & Estates

Closing Deals for Off Lease

mercedes benz parked in a row

Photo by Pixabay on Pexels.com

Recently, we had a busy week for our client Off Lease Only.  Partner David Blattner closed the acquisition of another 2.38 acres in North Lauderdale for the further expansion of their Broward dealership.    This is the third parcel Off Lease has acquired for this dealership.  The new parcel will allow access to the dealership, located on State Road 7, from Kimberly Boulevard and provide extra parking for Off Lease’s employees.  Once again, the seller was Calvary Church of Ft. Lauderdale.  The church will lease the new parcel from Off Lease and continue to hold services in the existing church building pursuant to a lease David negotiated.

The next day, David finalized a $14,438,000 construction loan with Ally Bank for Off Lease to complete the construction of Off Lease’s new dealership in Orlando.  The property, located on Narcoossee Road and McCoy Road near Orlando Airport, was originally 30 acres of raw, undeveloped land.  Over the last 4 years, Off Lease has sold a parcel for development to Racetrack Gas and has obtained all the necessary approvals to build this beautiful new dealership.   This loan allows Off Lease to construct its dealership on the remaining 23.3 acres.

David Blattner, Esq.

Leave a comment

Filed under Litigation, Real Estate

Miami Tower – Here We Come

Assouline & Berlowe Partner Peter E. Berlowe.jpg

Litigation Partner Peter Berlowe seated in Miami Tower Conference Room

After 14 years in Coconut Grove’s Continental Plaza, Assouline & Berlowe is moving its Miami Offices to the iconic Miami Tower in downtown Miami.

Beginning July 21, 2018, the official address of Assouline & Berlowe’s Miami Office will be: Miami Tower Building, 100 SE 2nd Street, Suite 3105, Miami, Florida 33131.

Please make a note of this change of address.

Eric N. Assouline, Esq.

Managing Partner
Business Litigation
ABLOGOCROP
ASSOULINE & BERLOWE, P.A.
www.assoulineberlowe.com

Intellectual Property, Labor & Employment Law, Real Estate, International Dispute Resolution, Commercial Litigation, Corporate Law, and Bankruptcy

Miami · Ft. Lauderdale · Boca Raton

Leave a comment

Filed under Uncategorized

15 Years Later – the Hard Work Starts to Pay Off – Litigation Department of the Year

Winner of Daily Business Review's Litigation Department of the Year for Small Firms in the Section of Real Estate and Other Litigation

Litigation Partners Peter E. Berlowe and Eric N. Assouline at the 2018 DBR Awards Ceremony

Before starting the firm in 2003, both Peter Berlowe and Eric Assouline worked as associate attorneys at the Weil, Gotshal & Manges LLP law firm.  Hanging in the office of the Head of the Litigation Department was a framed plaque that read “Defense Verdict of the Year.”  This plaque commemorated the awesome accomplishment of the senior partner’s efforts, and it was recognized by the American Law Journal.  Eric Assouline used to look at this plaque in awe and wonder if he could ever achieve the heights of his mentor.

In its 15th year, Assouline & Berlowe has grown into a recognized and well regarded presence in the South Florida legal community.  Assouline & Berlowe works with businesses and individuals on a wide array of legal issues, ranging from real estate, business litigation, intellectual property, employment, and trusts, estates and probate matters.

On May 30, 2018, Assouline & Berlowe was recognized by the Daily Business Review for the tireless hard work and effort of its attorneys, when the firm was awarded Litigation Department of the Year, for Small Firms, in the areas of Real Estate and Other Litigation.

The award came as a surprise to the management of the firm, not because they did not think that they had anything short of an excellent litigation department.  Instead, it was because the litigation department of Assouline & Berlowe only consists of 7 attorneys, and the firm, as a whole only has 12 attorneys.  The Small Firm category of the DBR award was open to all firms of 69 attorneys or less.  Firm management thought that there must be dozens of other firms that had many celebrated successes worthy of trying to win this award.  Nonetheless, again, the tireless effort of the firm management did as it always does, all that could be done to try to win.

Now, the hard work for the last 15 years, is starting to pay off.

Eric N. Assouline, Esq.

 

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: ENA@assoulineberlowe.com 

http://www.assoulineberlowe.com/

Intellectual PropertyLabor & EmploymentCreditors’ Rights & BankruptcyBusiness LitigationCorporate & FinanceReal EstateInternational Law

 

Leave a comment

Filed under Business Litigation, commercial litigation, Corporate Law, Intellectual Property, labor and employment law, Real Estate