Palm Coast Injury Law Blog : Florida Personal Injury Lawyer & Attorney : Philip J. Chanfrau

When a borrower closes on a mortgage loan he usually signs a promissory note and a mortgage.  The Mortgage is a pledge agreement.  The note is the legal document proving the debt is owed, and is a fancy I.O.U. It can be sold (negotiated) to another bank.  The right to foreclose depends on who owns the Note.

Historically, banks were able to buy and sell mortgage loans, and when they did, a legal document called an Assignment of Mortgage was always filed in the local Clerk's office to prove the loan had changed hands.  Filing an Assignment was cheap, costing less than $10, and it created a paper trail.  When the loan changed hands several times, a new Assignment was recorded each time to show who the new owner was. 

The Assignment process was little more than a boring paper trail "formality"  until the housing boom but it  has taken on huge ramifications.  The way to link ownership ( and the right to sue to foreclose) with the mortgage was through an Assignment, but there is not always an Assignment.

Why?  Because the ownership of the loans which were held by MERS "as nominee" cannot be proven, and without knowing who owns the loan, the mortgage lien is unenforceable.  One of the boilerplate mortgages during the housing  boom often named MERS "as Nominee."  If your mortgage names MERS "as nominee" you may very well have a good defense to stop a foreclosure.

The system may seem archaic, but it worked for centuries.  Trouble is that some on Wall Street  felt it was too slow and  costly. In an era of electronic banking, Wall Street wanted a system allowing the instantaneous electronic transfer of entire mortgages, or just pieces of them. 

As part of the housing boom Wall Street created a huge electronic swap meet to allow banks to buy and sell their loans electronically.  Bundles of mortgages were called Collateralized Backed Securities.  They were insured by Credit Default Swaps.  The entity which acted as the electronic clearing house and filing system keeping track of the loans which were sold is called MERS, short for "Mortgage Electronic Recording System."  It was meant to be a modern day substitute for the clerk's office by eliminating filing fees, and speeding up the trading of mortgage loans.  Banks saved over a billion dollars in fees by not paying to have Assignments of Mortgage recorded.  The system does not fit in with the legal  jigsaw puzzle and is causing  some cases in the foreclosure process to crumble apart.  Hats off to LivingLies for reporting the recent Kansas supreme court decision which shot down MERS.

April Charney, a Jacksonville, Florida attorney was recently credited by the New York Times for her excellent efforts in raising this defense.  She has alerted other  consumer lawyers what it means and how to defend a case when MERS as nominee is involved.  It took a long time for the Courts to start recognizing this defense.  So far there is no legal precedent in Florida like the Kansas Supreme court decision, but it is not far from coming. 

 In the meantime MERS means MESS if the bank is trying to foreclose.

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I send  notice to all potentially at fault parties at the beginning of a new claim, and it must be done right. If more defendants are discovered later on they get sent notices too.  In most cases, my letter briefly explains the type of  incident,  where, and when it happened.  It is sent to all having some share of  the responsiblity.  They are requested to forward my letter to their insurance company or attorney for further handling.   Within a week or two I will get a call from an adjuster  confirming insurance coverage for the incident requesting more details. Believe me, a person getting a letter threatening suit does not ignore it.

The statute of limitations should be kept in mind when a case comes in to avoid letting the statute run while an investigation is pending.  

The initial letter is not sufficient to toll or stop the running of a statute of limitations.  A suit must be filed to stop the statute from  running.

There are different presuit statutory requirements regarding certain classes of defendants or types of lawsuits.  

• Statutes like  FS 768.28(6)(a) require presuit notice to the state of Florida or one of its agencies, like the City of Palm Coast, Flagler County, a County School Board, Sheriff's office, or a special taxing district like Halifax Hospital Medical Center, with a copy to the Department of Financial Services.  
• Suits against the Federal government for negligence of employees (like a mailman) require yet another notice under the Federal Tort Claim  Act. . 
•  Suits for nursing home negligence (FS 400.0233(2))  and  medical negligence (FS 766.106(2)(a)) also require a presuit notice.  If a statute is not strictly complied with,  the Court will dismiss (throw out) a case when it is filed.  If the statute of limitations has already run, the dismissal could be fatal.  There is a two year statute on professional negligence and in wrongful death cases, so the clock has to be watched. The presuit notice prohibits filing a suit on medical negligence cases for 90 days after the defense has been notified, effectively tolling  the statute of limitations  and granting at least 60 days to file suit after presuit ends.  A party can obtain an automatic  90 day clerk's extension  to make up for the loss of time to complete a med-mal presuit investigation when the statute of limitations is about to run.

At trial the defendants will often use the "empty chair argument" if one or more at fault parties are not present.  Florida also has the Fabre rule, and both  rules need to be considered even at early stages of representation to assure a tactical advantage is not given to the Defense.  A jury will often take the easy way out in a trial by putting the entire blame on the defendant who should be sitting in the empty chair, but who is not a party to the lawsuit.

Although starting a claim may seem simple, there are lots of "gotchas" to be aware of.  Using an experienced attorney can be critical even at the earliest stages of representation.

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I was recently asked by two clients to help them regarding privacy issues. In both cases the opposing party wanted to take custody of their computers and copy their entire hard drives.

The issue: whether they had been using their computers to sell data illegally on the Internet.

After a couple of days, the opposition would give the computers back, with the promise that they would "try" to avoid peering into purely personal stuff. And if they found any, they would not copy it.   What is that saying about "letting the cat out of the bag?"

Their computers had been used for both personal and business reasons over the years. Their hard drives also had private information obtained from their customers, like credit card numbers, and personal information about their friends too. As computers become more and more central to our lives, it is to be expected that lawyers will often ask for data stored on computers.

Computers are like giant filing cabinets except the information is electronically stored instead of on paper. Florida law recognizes a constitutional right of privacy in these situations. A Motion for Protective Order should be filed to assert the right of privacy. The Judge should not allow the entire hard drive to be copied and should pare down the Discovery to protect the privacy interests of the objecting party.

Read more on the procedure in Florida, after the jump...

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I was talking to a client recently about his car accident. Before the accident, he said he had lots of surgeries before including neck and lower back surgery. More than 10 years ago he had a multi-level cervical fusion. He said he was doing fine up until the accident.

After the accident, he is facing a brand new cervical fusion to fix problems in his neck. He has numbness in his hands and severe headaches. He drinks out of plastic cups because he is afraid of dropping a glass. His neurosurgeon is scheduling him for a multi-level fusion of the entire cervical region from C6-7 to C3. Because of the recent accident he wanted to know how his previous surgeries fit in, and how his case was going to be handled.

Here are a few things to keep in mind when an old injury gets aggravated:

1. Everyone over the age of 30 starts having changes in their body which are a part of getting older. These changes are called degenerative disc disease  by doctors. Actually it is not a disease at all, but simply a normal part of  the aging process.

As we grow older the changes are easier for doctors to read on xrays and MRI's. So it is important for a lawyer, when arguing your damages case, to as carefully as possible distinguish between that type of change (which is totally normal) and those caused by an accident. To know what changes have occurred it is very important to have an accurate medical history. One common change is a ruptured or herniated disc.

2. I told him that the law only allowed recovery for any new injuries or the aggravation of pre-existing injuries which were caused by the accident. Sometimes it is difficult, even for a doctor to pinpoint the cause of a change in a person's medical condition.

Changes in a person's medical status may be the natural result of changes which occur over time, a disease, the negligence of a defendant or a combination of all these factors. It may be caused by two or more accidents or trauma, some of which may happen at the same time, or happen over a period of months or years.

Sometimes changes after an accident are subtle, like a ruptured disc and they may take weeks or months to surface.

I told him his treating physician would be in the best position to state what new injuries he had and whether his medical condition was worsened, aggravated or exacerbated by the accident in question. The testimony of his doctor would be admissible in a court of law as an expert opinion.

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Every so often I have a client who asks me about Open House parties where teenagers are provided with adult supervision and free booze.  Unfortunately, this happens in just about every community once every couple of years and the results are not pretty.

Today's front page of the St. Augustine Record contains a sad story about a Party Mom who provided booze at her home at some teen age parties earlier this year.   She is facing criminal charges for manslaughter because two of them were killed after they left her house while they were driving.  I know there is usually two sides to every story, but this was an incredibly stupid act and was clearly responsible for the death of two teenagers.

In Florida it is illegal for anyone (except at a religious function) to provide underage kids with booze.  It is no defense to say that the kids shouldn't have drank the booze.  That is what her criminal defense attorney is claiming in the manslaughter case. That may also be what the insurance company lawyer tries to argue if she gets sued for wrongful death of the two kids. The Florida Alcohol Defense statute deprives an injured plaintiff from his right to recover damages if he was more than 50% at fault. Does that also apply to kids?

A homeowner usually has to carry insurance on their house to get a mortgage loan.  The homeowner's insurance would provide coverage (insurance) for this type of negligence by the Party Mom.

There is an unanswered legal issue which is going to come up in the death case: whether the drinking of the minors can block a suit by their parents for wrongful death? The "Open house party"statute is designed to protect minors from harm that could result from consumption of alcohol or drugs by those who are too immature to appreciate potential consequences. Newsome v. Haffner, 710 So.2d 184, (Fla. 1st DCA 1998) dealt with an open house party at which a minor was killed with a firearm. His parents were allowed to make a claim for wrongful death despite his alleged negligence.

The bottom line is whether kids are subject to the Alcohol Defense statute.   My Prediction: NO!  Florida's Open House Party statute is designed to protect a particular class of people: minors.  It is intended to protect them from the evils of alcohol.  There is likely going to be a need for a Court to decide which law trumps: The Alcohol Defense law, which penalizes everyone from drinking, or the Open House Statute, which protects underage minors. 

I think the courts will find that the Open House Statute prevails.  If the Florida legislature wanted to the Alcohol Defense statute to apply to minors too, it could easily have written the Act differently to make that clear.

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You are reading my first blog post. I want to make some commitments so you will know what to expect. First, I am a plaintiff's personal injury trial attorney. I am proud to help the average Joes, the Bubbas, the crackers, the little guys. So my bias is definitely for them. I am prejudiced against Big Business and against Insurance companies. I am amazed so many of my clients in their first appointments often say, "I'm not the kind of person who sues, but..." You don't need to apologize anymore. I understand.

Some of my first couple of posts will discuss the basics of personal injury practice. Bread and butter stuff like:

* "How do we find out if there is any insurance without filing a lawsuit?"
* "Who pays if there is no insurance?"
* "Why does my own insurance company have to pay when I did not do anything wrong?"

I will keep my style plain and simple. No 25 cent words when a 5 cent word will do. I can write a memorandum of law but this is not the time or place for that.

I will provide crisp, no nonsense and cutting edge insight into current legal issues.There are thousands of great lawyers who BLOG. Sometimes I will refer to other legal blogs if they are entertaining, humorous, and informative. I will concentrate on Florida issues of law, but reserve the right to provide commentary on all significant current legal issues no matter where they occur or what they are about.

Sometimes I will comment on quirks of life. Things that are so strange that they cannot be made up. They remind us we are human, and stuff happens. If we weren't human mistakes would not happen. I'll explain the difference between negligence and accidents. For now, just know that the law allows a person who has been injured due to the negligence of another to recover his damages. But if it was just an accident, there is no payday.

And how big is the payday? That is always one of the important questions. I'll do my best to take the guessing off the table.

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