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

I recently published  an article concerning the MERS Foreclosure defense.As a follow-up,  this article will discuss the situation where a lender has successfully foreclosed and the borrower is  now concerned about a possible deficiency judgment.  As you know a deficiency occurs when the collateral (a vacant lot, condo, home)  is sold at the Clerk's sale and the sales price is not high enough to pay in full the balance due to the lender.

Keep in mind the deficiency issue is one of collectibility.  The bank can sue the borrower for the deficiency but will have trouble collecting on it unless there are assets.  If there are no assets, its like the Bob Dylan song:  "If you ain't got nothing, you got nothing to lose." Homestead is exempt from a forced sale unless there is a mortgage on it to the lender.

So here are some common questions concerning deficiency judgments.

• For how long after the foreclosure sale does the Bank have a right to decide to go after a deficiency?  Florida cases say that depends.  If the foreclosure sale judgment reserves jurisdiction allowing the court to decide whether to grant a deficiency, then the Bank has one year to come back and ask for the Deficiency Judgment.  If the bank does not do so, the debtor can ask for the case to be dismissed for lack of prosecution. If the foreclosure sale judgment does not reserve jurisdiction the Bank has 5 years from the date of the judgment to start a new case for a deficiency judgment.
• How does homestead property  matter? Depends.  If the homestead property is a new home and the bank has no lien on it then it is exempt under Florida's homestead protection. So even if the bank has an uncollected deficieny judgment  then it is not subject to a forced sale.    The bank can sue the debtor whether he lives in a  homestead or not, but the Bank cannot collect against the homestead unless it has a mortgage.  The easiest way to undertand this is unless the Debtor has waived his right of homestead (which is what a morgage does) then he has homestead protection from debt collection as to that asset.
• What does a Bankruptcy do?  This is a complicated issue which I will leave to a bankruptcy specialist like Scott Spradley in Flagler Beach.  If the debtor files bankruptcy is wipes out all debts inculding deficiency judgments.

Besides the issue of deficiency judgments and collection, there are issues about asset protection, short sales, deeds in lieu of foreclosure, and the tax consequences of a short sale.   An interesting fact I read lately was that between 2000 and 2007 the size of the national mortgage debt on homes in the USA went to 10.5 trillion dollars from $3.5 trillion.  So far, since 2007, the mortgage debt has only gone down to $10.2 trillion.  Somehow we have got to get rid of about $7 trillion in mortgage debt before the housing crisis will be behind us.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

For those who need some legal help but cannot afford to hire a lawyer to represent them, it might be worth while to think about “Doing it Yourself.” Or maybe part of it yourself. There was an story about this in the New York Times recently. This sort of idea may be helpful in many different types of cases, such as divorce or landlord-tenant disputes.    Since I specialize in Personal Injury, this blog will discuss the needs of a client who wants a lawyer to help on part of the case, for example getting it settled.  I call this a la carte legal representation.

The Florida Bar Association allows attorneys to ethically handle legal matters on a limited scope  basis.  See the  Rule 4-1.2 (c). 

How would it work?

•  “Limited scope representation” allows lawyers to unbundle their services and take only part of the case.  
•  Lay persons know they have a tremendous disadvantage due to huge knowledge gaps between themselves and insurance adjusters.  Would it be worth 10% of the settlement for legal representation from an experienced personal injury attorney to be sure you did not settle too cheap? I think so. 
• The lawyer can conduct a conference with the client and agree to do limited work for a much lower fee than if he handled the entire case. The client can collect copies of all the medical records, bills, photographs and accident report. He can provide a summary of  what he has been through.  He can assemble them for the attorney, thus saving himself fees for substantial overhead, time and expense. 
• More than ninety percent of all cases settle for less than $25,000 and in some personal injury law firms the lawyer’s paralegal handles the case anyway. 

Makes sense to me. The quality of the work would be as high as if the attorney handled the whole case.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Cancellation of an insurance policy is serious business.  It makes it much harder to get new coverage.  Increasing premiums just because of a single claim is also serious.  Both cancellations/nonrenewals and premium increases are governed by Florida laws.

FS 626.9541 contains a list of unfair claims practices which includes:

3 a. Imposing or requesting an additional premium for a policy of motor vehicle liability, personal injury protection, medical payment, or collision insurance or any combination thereof or refusing to renew the policy solely because the insured was involved in a motor vehicle accident unless the insurer's file contains information from which the insurer in good faith determines that the insured was substantially at fault in the accident.

b. An insurer which imposes and collects such a surcharge or which refuses to renew such policy shall, in conjunction with the notice of premium due or notice of nonrenewal, notify the named insured that he or she is entitled to reimbursement of such amount or renewal of the policy under the conditions listed below and will subsequently reimburse him or her or renew the policy, if the named insured demonstrates that the operator involved in the accident was:

(I) Lawfully parked;

(II) Reimbursed by, or on behalf of, a person responsible for the accident or has a judgment against such person;

(III) Struck in the rear by another vehicle headed in the same direction and was not convicted of a moving traffic violation in connection with the accident;

(IV) Hit by a “hit-and-run” driver, if the accident was reported to the proper authorities within 24 hours after discovering the accident;

(V) Not convicted of a moving traffic violation in connection with the accident, but the operator of the other automobile involved in such accident was convicted of a moving traffic violation;

(VI) Finally adjudicated not to be liable by a court of competent jurisdiction;

(VII) In receipt of a traffic citation which was dismissed or nolle prossed; or

(VIII) Not at fault as evidenced by a written statement from the insured establishing facts demonstrating lack of fault which are not rebutted by information in the insurer's file from which the insurer in good faith determines that the insured was substantially at fault.

c. In addition to the other provisions of this subparagraph, an insurer may not fail to renew a policy if the insured has had only one accident in which he or she was at fault within the current 3-year period. However, an insurer may nonrenew a policy for reasons other than accidents in accordance with s. 627.728. This subparagraph does not prohibit nonrenewal of a policy under which the insured has had three or more accidents, regardless of fault, during the most recent 3-year period.

Thus, the insured has major league protections against an insurance company which tries to cancel or non-renew, or which increases its premiums after an accident which the insured was an innocent party to.  Violations like these open the insurance company up to possible punitve damages and attorneys fees.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Daytona Bike week is around the corner.  Its an exciting time for bikers coming into the area.  Most will leave with great memories.  Experience tells us some will leave with most of their body parts, and some will not leave at all.  Some will lose friends and have damages to their motorcycles.  NHTSA estimates the chances of a fatality on a motorcycle are 30 times higher than in a car.  I recall one biker who had suffered a traumatic castration.  You should have seen the look on his face when he learned there was only $10,000 of insurance.

Out of curiosity I called a Florida agent who offers biker insurance through six major carriers.  Based on what she said, I think there is a knowledge gap about UM (Uninsured or underinsured motorists) coverage.   This whole area of UM and rejections was discussed in another Blog.

Here are some of the highlights of what I found out:

• The agent could not explain the legal differences between UM and HMO/Group coverage
• Bikers think they can skip getting UM when they have a major medical  or HMO policy to cover their medical bills

If the agent doesn't know,  how is a Biker supposed to make an informed decision to buy the UM or not?

• Email This
• Print
• Comments
• Trackbacks
• Share Link

When we were little kids our moms taught us some important lessons.  She did not know it but some of the lessons she was teaching us about included the basics of  foreseeability:  look both ways before crossing the street, don't run while carrying sharp objects like knives or scissors, don't play with fire.  All of these lessons included  the basics of foreseeability.  In each instance we were being warned bad things could happen if we were not careful under the circumstances.  We were taught to foresee, or look ahead.  As we mature we learn more adult lessons about life and human nature until as a "reasonable man" we are expected to know and follow  most of life's little lessons.

There is some confusion and maybe misconception about the law of damages and foreseeability.  Once the Plaintiff has proven the defendant's conduct was a cause of  the injury, the Plaintiff is entitled to a verdict for all of his damages which were caused by the negligence, even if they were entirely unforeseeable. In an RSD case, for example, the development of searing pain caused by this horrible condition may not be foreseeable, but the defendant must pay for it if he caused it.   I think some attorneys need to refresh themselves on this rule.  See Silva v Stein, 527 So. 2d 943 (Fla. 3rd DCA 1988). The case is an extremely instructive and important  one clearing up the apples and oranges difference between foreseeablity and liability, and foreseeablity and damages.

The following is an excerpt from Professors Prosser & Keeton  in their 1984 book on the Law of Torts, pg 291-292:

"It is as if a magic circle were drawn about the person, and one who breaks it, even by so much as a cut on the finger, becomes liable for all resulting harm to the person, although it may be death. The defendant is held liable when the defendant's negligence operates upon a concealed physical condition, such as pregnancy, or a latent disease, or susceptibility to disease, to produce consequences which the defendant could not reasonably anticipate. The defendant is held liable for unusual results of personal injuries which are regarded as unforeseeable, such as tuberculosis, paralysis, pneumonia, heart or kidney disease, blood poisoning, cancer, or the loss of hair from fright. The defendant of course is liable only for the extent to which the defendant's conduct has resulted in an aggravation of the pre-existing condition, and not for the condition as it was; but as to the aggravation, foreseeability is not a factor. One of the illustrations which runs through the English cases is that of the plaintiff with the ‘eggshell skull,’ who suffers death where a normal person would have had only a bump on the head; and an obviously related rule is that the defendant who kills another must take the chances, as to damages for the death, that the other has a large income, although the defendant has no reason to expect it."

This rule comes up in final arguments to the jury in cases where one would not expect the consequences of the defendant's negligence to be as great as they turned out. The jury needs a lawyer to explain causation in the context of the injury which the defense is going to argue is being blown out of proportion to the reality.  I have an interesting case I am working on now where my client was rear-ended and suffered a heart attack at the scene.  Other cases I've handled included clients who developed RSD, have had repeat cervical fusions, and various types of mental injuries such as PTSD. 

The lesson is that if the defendant caused the injuries it is no excuse or defense to say that they could not have been anticipated.  You are not expected to be as tough as Arnold Schwarznegger.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Having had the privilege of representing Bikers (and going to trial for many of  them) who were seriously injured while riding their motorcycles, there are a couple of things that all motorists need to be reminded about.  First, motorcycles are not as easy to see as larger vehicles and second, injuries involving them, are always extremely serious, and include brain damages due to head injuries, death, paralysis and amputations.  A minor case involves severe road burns and/or scarring. I once got a call from an Alabama man whose beautiful young daughter lost a leg while on the back of her friend's motorcycle.  She had promised to stay off his bike when she was allowed to come to Daytona...Because of the severity of injuries, most cases settle with little legal effort for the "policy limits."  This means the at fault driver had so little insurance it was not  even a fight to get.  Bikers ought to consider getting Uninsured Motorists coverage for as large a limit as possible if they continue to ride.

There are two major accident types which cause these injuries: 

• Drivers who make a sudden left turn into and across the path of the Biker, and
• drivers who rear end the bikers.  Rarely do you hear of a biker who turned into the path of an oncoming vehicle.  My biker friends are sober "as a Judge" when going for a ride, have gone to motorcycle school and leave plenty of room to maneuver when on the road.

In my experience, the biggest challenge to getting a fair trial for a Biker is during Jury selection.  In my opinion  jurors are still of the opinion that Bikers are devil may care, reckless and thrill seekers, even willing to take life and limb risks to ride their bikes.  People who own motorcycles are usually knocked off by the defense using their peremptory challenges.  To prejudiced or ignorant jurors hearing a motorcycle injury case, it makes no difference that the bikers are on the way to work at 7:00  in the morning, or run over from behind by a drunk driver.

We live in a part of Florida where Bike week is celebrated twice a year, once in March and one in October.  The number of Bikers who plan annual trips to attend Daytona is well  over 100,000.  They spend hundreds of millions of dollars locally and deserve our respect.  Many are professional doctors, lawyers, accountants, and own and operate successful businesses out of state.  It galls me to see ads by attorneys who patronize bikers and advertise proudly picture their motorcycles as a means to say "We are Bikers too.  Hire us."   They remind me of the Kodiak bears in Alaska trying to snare salmon during the annual salmon runs.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As I wrote in an earlier blog, there are certain legal presumptions which arise when the rear car runs into a lead car.  But those "presumptions" sometimes evaporate into thin air if the rear driver has a good reason to explain the collision.  This blog explains how that disappearing presumption works.

In the case of Klipper v GEICO,  the evidence came out at  trial that  the rear driver had a good reason for rear ending the lead car: the lead car had become disabled on the interstate late at night, and the driver of the lead car had not 

• attempted to move it out of the way onto a nearby median even though there was time,
• turned on its flashers,
• raised the hood, or
• otherwise signalled oncoming traffic

So  what happened to the presumption of negligence?  The trial court should have said nothing about it and just let the jury decide who was at fault.  Instead, the judge instructed the jury that the rear driver had the burden to prove she was not negligent.  This was wrong, and resulted in a reversal.  Once evidence is produced which tends to show the real fact is not as presumed, the presumption dissipates.

Why:  Because once evidence was presented giving some good reasons why the jury could reasonably find the lead driver was also negligent, the presumption was "rebutted."  It vanished from the case and was no more than an inference which the court should not have commented on either way.  In fact, both drivers had something to point their fingers at.

• Email This
• Print
• Comments
• Trackbacks
• Share Link