Monday, October 24, 2016

Mortgages, child support, excessive force, and organic fennel, rosemary cream, and Kalamata olives on a bed of handmade posta

Appeals -- Sanctions -- Failure to timely file initial brief -- Failure to obey court orders -- Appellate counsel referred to Local Professionalism Panel
NOCARI INVESTMENT, LLC, et al., Appellants, v. WELLS FARGO BANK, N.A., et al., Appellees. 3rd District.

  Bankruptcy -- Claims -- Objections -- Rule 3001(c) objections, asserting that proofs of claim did not attach a copy of writing upon which claims are based, lack merit -- Creditor was not required to prove that its claims are based on an open-end or revolving consumer credit agreement -- Objections to claims, which were scheduled as undisputed in amounts identical to amounts asserted by creditor in its proofs of claim, are not good faith objections -- Objections to claims on grounds that account summary statement attached to each proof of claim includes a notation that debt was “charged off” are legally insufficient -- Mere fact that proof of claim includes reference to a charge-off date is not, standing alone, a legal basis for a claim objection -- Even if court followed decisions disallowing claims where debtor received a Form 1099-C reflecting the cancellation of debt, validity of proofs of claim remain unrebutted and claims will be allowed where debtors did not present evidence that they received a Form 1099-C for any of debts subject of charge-off objections In re: AMAURYS RODRIGUEZ and ANAEN NUNEZ, Debtors. U.S. Bankruptcy Court, Southern District of Florida.   Williams v. Poarch Band of Creek Indians Court: U.S. Court of Appeals for the Eleventh Circuit Docket: 15-13552 Opinion Date: October 18, 2016 Areas of Law: Constitutional Law, Native American Law Plaintiff filed suit against the Poarch Band of Creek Indians, alleging that she was terminated from her job because of her age pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621-634. The district court adopted the Magistrate’s Report and Recommendation to grant the Poarch Band's motion to dismiss the suit based on the doctrine of tribal sovereign immunity. In this case, there is no evidence that the Poarch Band waived its immunity, either generally or in the present suit. The court rejected plaintiff's comparison of the definitions of the term "employer" found in the ADEA and Title VII, in conjunction with the Supreme Court's opinion in Fitzpatrick v. Bitzer; plaintiff's argument that the ADEA is a statute of general applicability is foreclosed by the court's precedent; and other circuits that have considered the issue raised by this appeal also have determined that federal courts lack subject-matter jurisdiction over an ADEA claim asserted against a federally-recognized Indian tribe. Accordingly, the court affirmed the district court's decision to grant the Poarch Band’s motion to dismiss for lack of subject-matter jurisdiction.    Bankruptcy -- Discharge -- Fraudulent transfer -- Discharge should be denied pursuant to Section 727(a)(2)(A) because debtor transferred property within one year before his bankruptcy petition with intent to hinder, delay, or defraud his creditors -- Debtor transferred property where debtor liquidated his pension fund, deposited the net proceeds of fund in his individual checking account, and within the two months between the deposit and filing of his bankruptcy petition made a number of transactions which had the effect of significantly diminishing his bank account -- Debtor cannot claim that proceeds of liquidated pension account were exempt from his Chapter 7 estate where he voluntarily withdrew funds from his pension plan, funds were never placed in designated individual retirement account or any other investment vehicle, Section 222. 21(c), Florida Statutes, did not provide an exemption for funds after they were paid to debtor and deposited into his checking account, and debtor did not claim an exemption for his checking account under that statute -- False oath or account -- Discharge should be denied pursuant to Section 727(a)(4) where debtors knowingly made a false oath on the bankruptcy schedules -- Where Statement of Financial Affairs signed by debtors did not disclose liquidation of pension fund; income received as a result of fund's liquidation; or gifts that debtor wife made from proceeds of fund, even though she was aware that the transactions had occurred within two months before bankruptcy petition was filed, debtors' nondisclosures constitute false oaths -- Debtors were obligated to disclose assets and transactions, despite their claim that pension proceeds were exempt -- Circumstantial evidence shows that debtors intended to hinder, delay, or defraud their creditors by disposing of proceeds of pension fund and misrepresenting the transactions on their bankruptcy schedules -- Based on circumstances, court could conclude that debtor husband had prior knowledge of bankruptcy process, that debtors were aware of claims of mortgage creditors who had foreclosed on their home, that husband liquidated his pension fund in effort to remove it from reach of creditors, and that debtors thereafter attempted to spend pension proceeds or otherwise conceal them from bankruptcy estate -- Failure to satisfactorily explain loss of assets or deficiency -- Discharge should be denied pursuant to Section 727(a)(5) because debtor experienced a loss of assets and failed to provide a satisfactory explanation for the loss -- Debtor's bank accounts were significantly diminished in weeks before bankruptcy petition was filed, and he was unable to provide even vague or speculative explanations of many transactions that took place on eve of his bankruptcy In re: JEFFREY LEONARD JONES, DARNELLA COLE JONES, Debtors. U.S. Bankruptcy Court, Middle District of Florida, Jacksonville Division.

Child custody -- Jurisdiction -- Uniform Child Custody Jurisdiction Enforcement Act -- Florida is home state of child who was born in Florida and lived in Florida until mother relocated to New York when child was less than two weeks old -- Trial court erred in dismissing putative father's petition for determination of paternity, parental responsibility, child support, and related relief on basis that court lacked jurisdiction under UCCJEA because Florida was not child's home state -- Fact that child was born out of wedlock has no bearing on child's home state
JAMES BAKER, Appellant, v. CARA CATHERINE TUNNEY, Appellee. 5th District.

Child support -- Income -- Deductions -- Administrative support order erroneously allowed deductions for expenses against gross income that were not permitted by statute -- Remand for recalculation of parents' respective net incomes for purposes of child support guidelines
DEPARTMENT OF REVENUE on behalf of HOLLY N. HARRIS, Appellant, v. THADIUS DEMENTRIEL CRAWFORD, Appellee. 1st District.

Civil procedure -- Proposal of settlement -- Attorney's fees -- An offer of settlement is not invalid for failing to state, as required under Rule of Civil Procedure 1.442(c)(2)(F), whether the proposal includes attorney's fees and whether attorney's fees are part of the legal claim, where attorney's fees are not sought in the pleadings
SUSANNE L. KUHAJDA, Petitioner, vs. BORDEN DAIRY COMPANY OF ALABAMA, LLC., et al., Respondents. Supreme Court of Florida.

Civil rights -- Search and seizure -- Arrests -- Excessive force -- Officer's multiple tasings of suspect, after an arrest had been fully secured and any potential danger or risk of flight eliminated, violated suspect's clearly established constitutional right to be free from excessive force -- Where law enforcement officers handcuffed and pinned down the suspect following a struggle and then tased him five times with at least two of those tases occurring after suspect had ceased resisting, a reasonable officer in arresting officer's position and under circumstances would have had fair warning that repeatedly tasing handcuffed suspect after he had ceased struggling and resisting was unreasonable and unconstitutionally excessive under Fourth Amendment -- Evidence construed in favor of plaintiff demonstrates that suspect was not flight risk or a threat to safety of officers or public prior to conclusion of tasings -- Officer was not entitled to qualified immunity on excessive force claim at summary judgment stage of proceedings
PATRICIA JUANITA WATE, individually and as personal representative of the Estate of James Clifton Barnes, Deceased, Plaintiff-Appellee, v. KENNETH KUBLER, Defendant-Appellant. 11th Circuit.

Consumer law -- Mortgage foreclosure -- Real Estate Settlement Procedures Act -- Loss mitigation -- Loan servicer had no duty to evaluate an application for loss mitigation options submitted by borrowers when, at time application was submitted, a foreclosure sale of borrowers' property was scheduled to occur in two days -- Under Regulation X, which implements RESPA, a loan servicer's duty to evaluate a borrower's loss mitigation application is triggered only when borrower submits the application more than 37 days before the foreclosure sale -- Borrowers' application was untimely, even where servicer postponed the foreclosure sale such that sale actually transpired more than 37 days after they submitted their complete loss mitigation application -- To evaluate the timeliness of an application, Regulation X requires counting the number of days between date a complete loss mitigation application is received and date of foreclosure sale, and directs using scheduled date of foreclosure sale as of date complete application was received to determine date of foreclosure sale -- It is irrelevant if servicer subsequently reschedules foreclosure sale to a later date -- Because borrowers completed their application too late to trigger servicer's duty to evaluate the application, summary judgment was properly granted to servicer on loss mitigation claim -- Notice of error -- Borrowers were not entitled to summary judgment on separate claim that loan servicer failed to respond adequately to their subsequent notice of error as required by Regulation X, because borrowers failed to present evidence that they suffered actual damages or were entitled to statutory damages based on pattern or practice of RESPA noncompliance -- Use of a template to respond to borrowers' notice of error was insufficient evidence from which to infer that servicer had a pattern or practice of issuing form letters that were unresponsive to borrowers' notices of error
JOHN LAGE, MARIA MANTILLA, Plaintiffs-Appellants, v. OCWEN LOAN SERVICING LLC, Defendant - Appellee. 11th Circuit.

Mortgages -- Satisfaction -- Failure to timely record certificate of discharge -- Jurisdiction -- Plaintiff who used proceeds of real estate sale to satisfy a mortgage owned by defendant lacks standing to sue when he alleges only a failure to record a satisfaction of mortgage within a statutory period and fails to bring suit until after that statutory violation has been remedied -- Because plaintiff has not alleged that the violation of New York law that occurred when defendant failed to timely record the discharge of mortgage caused or could cause him harm that could constitute a concrete injury in fact, appeal from dismissal of complaint must be dismissed for lack of jurisdiction
ROGER NICKLAW, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. CITIMORTGAGE, INC., Defendant-Appellee. 11th Circuit.

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Thursday, October 6, 2016

Certiorari, civil procedure, and linguine with fresh pineapple sage, fresh rosemary, organic cream, and shaved asiago

Attorney’s fees -- Offer of judgment -- Although complaint made passing reference to equitable relief, action was one for damages, and plaintiff would be entitled to attorney’s fees under offer of judgment statute if he recovers a judgment in an amount at least 25 percent greater than the offerFAITH FREIGHT FORWARDING CORPORATION, Appellant/Cross-Appellee, v. CARLOS ANIAS, Appellee/Cross-Appellant. 3rd District.

Certiorari -- Jurisdiction -- Petitioner is not entitled to second-tier certiorari review of decision of circuit court appellate division regarding sufficiency of PIP policy language where there was no violation of a clearly established principle of law resulting in a miscarriage of justice by circuit court -- There was no clearly established principle of law where there are conflicting decisions of district courts of appeal on issue, and Florida Supreme Court has accepted jurisdiction to resolve the conflicting decisionsALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Petitioner, v. HALLANDALE OPEN MRI, LLC, a/a/o ALEXIA BLAKE, Respondent. 3rd District.

Civil procedure -- Default -- Trial court abused discretion by entering default judgment after defendants filed motion to dismiss and motion to clarify instead of an answerSILAS PIERCE AND ESTATE SALES STARS, Appellants, v. CHRISTOPHER KROHA, Appellee. 5th District.

Civil procedure -- Dismissal of complaint -- Action by condominium unit owner against another unit owner and condominium association alleging that improper installation of carpet on roof of condominium building resulted in water damage to plaintiff’s unit -- Appeals -- Order dismissing five of six counts against association is a non-final, non-appealable order where the remaining count arises out of the same facts as the dismissed counts -- Where claims were filed against unit owner individually and as trustee, it was error to dismiss claims against trustee where motion to dismiss was filed solely by individual, and trustee was not a movant -- Trial court erred in dismissing claims in amended complaint as barred by statute of limitations where claims in amended complaint arose from same conduct, transaction, or occurrence alleged in initial timely complaint, so that amended complaint relates back to initial complaintBROOK ANDERSON, Appellant, v. IRA EPSTEIN, etc., et al., Appellees. 3rd District.

Dissolution of marriage -- Alimony -- Trial court abused discretion in failing to award wife permanent alimony -- Because marriage was long-term marriage, there was an initial presumption in favor of permanent alimony, and husband did not present sufficient evidence to rebut this presumption -- Court erroneously denied request for permanent alimony on basis of figures set forth in wife’s most recent financial affidavit where affidavit was based on wife’s current living arrangements -- Permanent alimony is used to provide for the needs and necessities of life for a former spouse as they were established during the marriage

CINDI B. CLEMENS, Appellant, v. MICHAEL P. CLEMENS, Appellee. 5th District.

Dissolution of marriage -- Child custody -- Trial court did not exceed its discretionary authority by including in final judgment on parenting plan and timesharing a provision prohibiting father’s discussion of any religious matters during visitation with children where there was “clear, affirmative showing” on the record that father’s actions towards children, which he adamantly believed were religiously motivated, have been harmful to childrenMICHAEL KOCH, Former Husband, Appellant, v. EMILY A. KOCH, Former Wife, Appellee. 1st District.

Dissolution of marriage -- Equitable distribution -- Trial court’s prospective-only award to former wife of her share of former husband’s pension on remand did not depart from appellate court’s mandate directing trial court to reconsider the proper disposition of the marital portion of pension by considering the factors in section 61.075, Florida Statutes -- Appellate attorney’s fees -- Trial court erred in denial of award of appellate attorney’s fees to former wife who prevailed on appeal -- Court’s finding that former husband was unable to pay appellate attorney’s fees contradicted its prior attorney’s fee award without any additional evidence or hearing, and was unsupported by record, given the large disparity in the parties’ incomesARVITA M. COLEMAN, Appellant, v. MICHAEL BLAND, Appellee. 5th District.

Dissolution of marriage -- Prohibition -- Intervenor’s claim did not survive parties’ voluntary dismissal of dissolution of marriage proceedingsCATHERINE CLAFLIN, Petitioner, vs. CLARENCE CHRISTOPHER CLAFLIN, Respondent, vs. MSP RECOVERY SERVICES, LLC, Intervenor. 3rd District.

Dissolution of marriage -- Provision characterizing award of attorney’s fees and costs as a form of support that is not dischargeable in bankruptcy or by any other means was improper -- Remand with instructions to strike this provisionFELIX DE JESUS GUERRA, Appellant, v. ANGELA GUERRA, Appellee. 2nd District.

Employer-employee relations -- Retaliatory discharge for filing workers’ compensation claim -- Damages -- Award of damages was excessive in light of absence of medical evidence that employer’s conduct caused employee’s medical condition to worsen or caused employee to suffer past or future psychological harm -- Remand for remittitur or new trial -- Judgment improperly awarded post-verdict interest -- Error to deny leave for employee to assert claim for punitive damages where there was a reasonable showing of a basis for recovery of such damages –

FAITH FREIGHT FORWARDING CORPORATION, Appellant/Cross-Appellee, v. CARLOS ANIAS, Appellee/Cross-Appellant. 3rd District.

Family law forms -- Amendment -- Memorandum for Certificate of Military ServiceIN RE: AMENDMENTS TO THE FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS. Supreme Court of Florida.

Family law forms -- Amendments -- Name change petitionsIN RE: AMENDMENTS TO THE FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS. Supreme Court of Florida.

Florida Bar -- Rules -- Amendment -- Competence -- Minimum continuing legal education standardsIN RE: AMENDMENTS TO RULES REGULATING THE FLORIDA BAR 4-1.1 AND 6-10.3. Supreme Court of Florida.

Insurance -- Homeowners -- Sinkhole claims -- The statutory presumption of correctness afforded to an insurer’s internal report during the investigation process in the sinkhole statutes does not extend to later trial proceedings -- Attorney’s fees -- Insured prevailing in action against insurer -- A prevailing insured’s recovery of attorney’s fees under section 627.428, Florida Statutes, requires only an incorrect denial of benefits, not a showing of bad faith on the part of the insurer -- Insurer’s payment of policy proceeds after suit has been filed constitutes the functional equivalent of a confession of judgment, thereby entitling insured to an award of attorney’s feesKATHY JOHNSON, Petitioner, v. OMEGA INSURANCE COMPANY, Respondent. Supreme Court of Florida.

Insurance -- Personal injury protection -- Sufficiency of language in PIP policy to put insureds on notice that reimbursement of medical bills will be limited by statutory schedule -- Appeals –

Mortgage foreclosure -- Error to grant summary judgment in favor of plaintiff where plaintiff failed to demonstrate legal insufficiency of affirmative defense that plaintiff failed to comply with paragraph 22 of mortgage regarding notice of acceleration -- Affidavit addressed to whether notice was actually sent to defendants did not address allegation that notice did not comply with requirements of mortgageBALBINA A. YOUNG and LAWRENCE E. YOUNG, SR., Appellants, v. NATIONSTAR MORTGAGE, LLC, Appellee. 2nd District.

Mortgage foreclosure -- Evidence -- Hearsay -- Exceptions -- Business records -- Trial court abused its discretion in excluding bank’s business records, which included records from prior servicer, where bank’s witness demonstrated sufficient familiarity with boarding process which occurred after purchase of prior servicer’s assets and witness’s testimony established trustworthiness of prior servicer’s recordsOCWEN LOAN SERVICING, LLC, Appellant, v. ROBERT GUNDERSEN and JOAN GUNDERSEN, Appellees. 4th District.

Promissory notes -- Power of attorney -- Trial court erred in dismissing counts of complaint filed by plaintiff as attorney-in-fact under powers of attorney executed by family members seeking to recover on promissory notes given to members of plaintiff’s family -- Although notes contained language barring assignment or transfer of notes without maker’s prior written consent, powers of attorney giving plaintiff the right to collect the sums due under the notes on behalf of the owners did not constitute an assignment or transfer of the notes -- Under the powers of attorney, plaintiff was acting as an agent of the owners of the notesLUIS ANTONIO NIETO VILLAMIZAR a/k/a LUIS NIETO, individually and as Attorney in Fact, Appellant, v. LUNA DEVELOPMENTS GROUP, LLC, etc., et al., Appellees. 3rd District.

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