Guilty as charged - mea culpa already!

While driving southbound on I-95 in the middle lane in the middle of the day a state trooper pulled next to me in the fast lane, then dropped back behind me, and switched on the blue lights. I dutifully signaled and pulled over at my first opportunity. The officer informed me that he stopped me because I wasn't wearing a seat belt and then asked for my license and registration. While handing over my documents, I explained to the officer that I actually was wearing my seat belt but had it under my arm instead of on my neck because it got twisted up and it was uncomfortable.. He said that I was wearing it improperly and so I wasn't wearing it. I said ok.

He went back to his patrol car and, I suppose, pulled up my information. When he returned, he asked me if I had ever been arrested. At this point, I could have asked him if he was giving me a ticket, and then asked if I was free to go. He still had my license and registration in his hand. But instead of invoking my rights and probably ending up with the discretionary seat belt ticket, I responded - "not lately" to his question about being arrested. He had just run my name, he must have seen all (not that there's much) of my possible criminal and driving history, including tickets, arrests, and warrants. And this is Florida, a most unforgiving state that never forgets any infraction, charge, or conviction perpetrated within its borders. But, I just said "not lately". Then he asked me where I was going, and I told him. Then he asked me if I had ever been arrested for guns or drugs. I said no. Then he asked me where I was coming from, and I told him. Then he asked me how long it would take me to get where I was going. A geography quiz now? Mind you, he is still holding my license and registration in his hand. I didn't want to get into a disagreement with him. I know how important "demeanor" is to an officer. I usually lose out in the demeanor department, because I am rarely happy and cheerful during a traffic stop. So I told him my projected travel time. Then he asked me again about the drugs and guns. Again I said no, no drugs or guns. I don't know if he thought I was going to get nervous and feverishly confess to an imaginary drug crazed shooting spree. I didn't. He finally handed me back my paperwork and told me to drive safe.

None of the officer's questions had anything to do with a seat belt. Even though an officer can ask these questions during a traffic stop, I was not obliged to answer any of them. However, he could have given me a seat belt ticket just to ruin my day. So I cooperated. If he had asked me if he could search the car, I would have politely declined. A vehicle search is a consent search. Procedurally an officer is supposed to return to the driver his license and registration before asking to search the vehicle. It is intimidating to have an officer holding your documents, and not knowing if he is going to write a ticket or ask for a search.

I am a middle aged white lady. I am very likely within the least likely demographic set to have drugs or guns. And, even if I had a history of drugs and guns, and had been to prison for the drug crazed shooting spree, that fact is not relevant to this traffic stop.

U.S. Constitution, Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

“It is said that power corrupts, but actually it's more true that power attracts the corruptible. The sane are usually attracted by other things than power.”
― David Brin

Substantial Change in Child Custody

"Substantial change" relative to child custody is a phrase that we often hear, but do you know what it really means? Apparently it means a lot of things ...

A Single Factor Might Not Constitute "Substantial Change"

In reviewing child custody cases it seems that a combination of several change factors is most likely to constitute a substantial and material change in circumstances. In Ogilvie v Ogilvie, 954 So 2d 698 (1st DCA 2007) the Court held that the parties failure to communicate; or the relocation of one or both of the parties; are factors that are each insufficient, by themselves, to constitute substantial or material change. However, the Court noted that “parental alienation” by itself may be sufficient to prove substantial and material change. Similarly in Morales v Morales, 915 So 2d 247 (5th DCA 2005), the Court found that, an acrimonious relationship alone, between former spouses is not substantial change.

The pertinent part of the Florida Statutes is as follows:
61.13 Support of children; parenting and time-sharing; powers of court.--

• (3) For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent's relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the minor child, including, but not limited to:
  

• (a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
  

• (b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
  

• (c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
  

and act upon the needs of the child as opposed to the needs or desires of the parent.

• (d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
  

• (e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
  

• (f) The moral fitness of the parents.
  

• (g) The mental and physical health of the parents.
  

• (h) The home, school, and community record of the child.
  

• (i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
  

• (j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child's friends, teachers, medical care providers, daily activities, and favorite things.
  

• (k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
  

• (l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
  

• (m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought.
  

• (n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
  

• (o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
  

• (p) The demonstrated capacity and disposition of each parent to participate and be involved in the child's school and extracurricular activities.
  

• (q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
  

• (r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
  

• (s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child's developmental needs.
  

• (t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
  

A Cautionary Tale - Guest Blog by Anonymous Dad

My twenty year marriage ended after a year and a half of divorce proceedings and a two day trial in July 2012. I tried to meet her halfway at every step of the way, but she was unwilling. During the process of the divorce, and still today, I have been harassed, threatened, coerced, intimidated and bullied by every means possible, legal and illegal, ethical and not. She has used the workers at the Department of Children and Families to harass me. She has dragged me to court on make believe allegations of child abuse and worse. She has set out to make my children hate me, and more or less succeeded with my oldest. The x wife's lawyer orchestrated the whole thing.

Although I tried, I was never able to get any help from the judge, my attorney, or the court staff to make the bombardment stop. In the end, at the end of the day, at the final hearing, I was awarded shared parental responsibility with 50/50 timesharing of my children. I spent over $150,000 but I still have my kids. I cannot say that this was money well spent. It was money wasted, but I don't regret it. I would do it again to ensure that my children remain part of my life. I will say, however, that I would much rather have spent the same money on my children, than paid it to my attorney.

I’m a warrior. My concern is that a person who does not have the fight in them would have lost their children. This happens every day in America, and I, for one, want to see it stop. If I broke then she would have gotten my kids. If I ran out of money, she would have gotten my kids.

My x told my kids that their dad is a rapist, angry, abusive, a wife beater, and a dangerous driver. All lies. I take my kids to therapy to learn how to deal with what they are hearing from their mom about me. Throughout the divorce proceedings the x's lawyer continued to try and get in front of the judge to stir trouble for profit.

In March we participated in mediation at my lawyer’s office. We agreed on financial arrangements after hours of negotiations. For some reason, my lawyer agreed that my x wife’s lawyer would write up the agreement. The marital settlement agreement took three months to prepare and was finally provided to my lawyer, at 9 pm the night before trial, on a Sunday.

When the paperwork actually made it to my lawyer, it was totally wrong and severely slanted towards the x wife. It was nothing we agreed upon and cost me $37,000 more than our initial agreement.

Also and most importantly about the financial "distribution" is that my x wife’s lawyer instructed her client to take $47,000 dollars out of investment accounts immediately after the mediation. There was no signed agreement so they stole the money in order to pay my x wife's lawyer bills and keep the case going.

This also ultimately made it possible to hire their social investigator. The money they took kept the case going since my ex-wife was out of money before the “theft”. Where are the ethics involved in this?

Unfortunately although I told my lawyer I saw what was happening and I wanted to stop the $47,000 transaction, my lawyer said to let it go. I took her advice. She went on further to say in writing that “maybe the feeling of having money will be good for them and they will stop and negotiate now.” I’m sorry I didn’t go with my instincts and not listen to my lawyer and stop the transaction.

Also, my ex-wife’s lawyer put in a motion for financial relief for the two parties. After going back and forth as to what assets we would equally disperse, they ultimately said in writing that we do not agree to do an equal portion. “The ex-wife is allowed to withdraw money while husband can’t have anything?” So, nothing ended up being withdrawn. My lawyer was stunned.

It was more stalling to keep billing while negotiating financials. It was an obvious attempt of my ex-wife’s lawyer to run up a bill.

In court the kid’s therapist said that my x was never interested in the well-being of the kids. The therapist went on to say that my x only wanted to use her [the therapist] for litigation.

The judge is not happy with my x. Or with me. Even though the judge doesn't believe her tales, the judge, I guess, would rather not hear anything at all from either of us

I am $150,000 poorer but have my kids 50/50. I write this for the poor man or woman who lost his or her kids due to everything I have described.

What about those people who are not educated, don’t have money, can be broken down by professionals who design a system to win?

Is there anyone out there who can help?

America, We're Better Than This.

What do Justin Carter and Paula Deen have in common? Justin Carter is the 19 year old who is currently in jail with a $500,000. bond, charged with making terrorist threats in a Facebook post. And Paula Deen the former Food Network maven, has been demonized for admitting under oath that she said the "N - Word" in the past twenty years. N*&!% PLEASE!!!!

Both Carter and Deen are being punished far more than their offense warrants. I believe Deen will bounce back once the dust settles, just like Martha Stewart. On the other hand, Carter's current situation is bleak. His parents cannot afford the half a million dollar bond; and according to a recent article, "Father: Teen Jailed For Facebook Comment Beaten Up Behind Bars", Carter has been beaten, and apparently been put into solitary confinement, and suicide watch. There is a petition on Change.org - comment - with over 70,000 signatures as of this writing, July 4, 2013.

Justin Carter's mother's plea in the petition states:

"My son, Justin Carter, was arrested on February 14, 2013 (yes, Valentine’s Day) because of a sarcastic comment he posted on Facebook about a computer game which was then taken out of context by a complete stranger! Please sign my petition to help release my son, Justin."

Justin Carter's offending comment was:

"I think Ima shoot up a kindergarten / And watch the blood of the innocent rain down/ And eat the beating heart of one of them." But, according to various accounts he added "JK and lol" after his comment - just kidding and laugh out loud. He was being sarcastic. He was arguing with some other person about an online video game. No one was hurt. No one was ever threatened.

We are better than this. I don't know Justin Carter or his family. I do know that this has gone too far. America, today is July 4. It is a day of celebration for this great country.Free speech ... First Amendment ... innocent until proven guilty ... due process.

The article - Father: Teen Jailed for Facebook Comment Beaten Up Behind Bars - also states:

"The charge is a third-degree felony, which in Texas carries up to 10 years in prison. The Comal County District Attorney's office hasn't responded to our calls, but police in New Braunfels, Texas, who have investigated the case, say in a time of heightened sensitivity to school shootings, their interest is in preventing violence when they can."

Not too long after the Columbine shootings my own son who was a middle school student, received a death threat from another student. The other student told my son that he was going to bring a gun to school the following day and shoot him. My son went to the vice principal's office and reported the other student. I saw his one line statement - So and So said he was going to bring a gun to school and shoot me tomorrow. The school despite their purported zero tolerance policy didn't do much at all to protect my son. They questioned the other child; they contacted the other child's parents; and they searched the child's backpack the next day. They did not suspend him, they did not contact any law enforcement other than the school resource officer. The school officials easily satisfied themselves that the threat was not a real threat because the child had no access to a gun. (Supposedly no access - but how hard can it be?) I took my son out of that middle school and put him into a school of last resort where they had metal detectors and real police officers who would not only keep peace but protect my son. He did well there. And he was safe. The point of this story in this context is that there is discretion. There is discretion at every level in the criminal justice system. Just as the school used their discretion in my son's case, and decided that my son was not in danger, law enforcement and the state attorney's office have discretion in Justin Carter's case. 

The article - Father: Teen Jailed for Facebook Comment Beaten Up Behind Bars - also states:

"The whole situation is kind of unfortunate," said New Braunfels Police Lt. John Wells. "We definitely understand the situation that Mr. Carter is in, however he made the comments, and it is an offense. We have to ... protect the general public and specifically, in this case, with it involving schoolchildren, we have to act. We take those very seriously."

"... Kind of unfortunate ..." ????  This case does not involve children. No children were ever hurt or at risk. The only injured party is Justin Carter. Please America, let's cultivate our common sense. Happy Fourth of July.

Stake Your Claim to a Prime Spot Under the Bridge.

I hope that the state of Florida has kept the bridges in good repair, because an increasing number of families will soon be living under them. Thank you, Governor Rick Scott. The governor could not find it in his heart to veto the so called foreclosure reform bill that is set to expedite Florida foreclosures. In that same bill - House Bill 87 - which was signed into law on June 7, is a provision that makes it easier for landlords to evict their tenants. So between the expedited foreclosures and the easier evictions -- space under the bridges will be at a premium. Welcome to Florida.

An article on the Florida Bar's site - "Plan in Place to Work Foreclosure Backlog" by Gary Blankenship -   which is dated, June 1, 2013, but which was actually published several days prior to June 1 shows a partial break down of how the money is being allocated. (I found the article a few days prior to June 1, and found it so interesting that this article predicting the governor's signing of the Foreclosure Reform Bill appeared before the date displayed. They must have a powerful crystal ball!) The Florida Bar article states:

"The Office of the State Courts Administrator broke down the authorized spending:

* It includes $16 million for the courts to pay for increased use of senior judges, general magistrates, and case managers to help dispose of foreclosures. Another $5.3 million was allocated to the state courts system to pay for technology to help handle foreclosures. Those monies can be spent over two years.

* A total of $9.3 million is designated for county clerks of courts to help courts with foreclosure paperwork.

* Another $10 million is set aside for legal aid agencies to help low- and moderate-income homeowners threatened with foreclosure."

Apparently the foreclosure courts, in an effort to expedite the proceedings, are taking a page from family court in using general magistrates. In family court general magistrates are attorneys appointed by the chief judge to hear uncontested matters. And if history is any indicator, those hearings are not as fair as they might be. Read more - Baby Mama Drama? You can make it stop.

And now for the homeowner in foreclosure the rules just got harder to follow and understand. The Bill Analysis explains the Show Cause Procedure as follows:

"Show Cause Procedure

The bill makes several revisions to the show cause process. The bill provides that after filing a complaint, the plaintiff may request an order to show cause for the entry of final judgment, and the court must immediately review the request and the court file in chambers without a hearing. If the complaint is verified, complies with the requirements in s. 702.015, F.S., and alleges a cause of action to foreclose on real property, the court must issue an order to show cause why a final judgment of foreclosure should not be entered to the other parties named in the action. The bill adds a number of elements that must be included in the court’s order to show cause that is sent to the other parties named in the action. The court must set a hearing no sooner than the later of 20 days after service of the order to show cause or 45 days after service of the initial complaint. The hearing is no longer required to be held within 60 days of the date of service, as required by current law. The bill specifies that the Legislature intends that the alternative show cause procedure may run simultaneously with other court proceedings." 

  

And the Florida Bar article quoted and linked above also states:

"Show cause hearings in foreclosure cases will use the summary judgment standards to speed the resolution of foreclosure cases, and at those hearings defendants will have to claim a specific, allowable defense to forestall the foreclosure. Critics of the bill said defendants would have inadequate time to conduct discovery, noting in other civil cases summary judgment comes well into the case and after discovery..."

And the Florida Bar article continues to say:

"Critics said it rewarded banks which had flooded the courts with faulty paperwork and limited the ability of homeowners to defend a foreclosure. They argued that there would be no untimely delays if banks filed the proper paperwork and pursued cases instead of letting them languish."

You're preaching to the choir. Homeowners whose foreclosures have been dormant for years are now receiving notices to appear in court, often for a hearing on the plaintiff's motion for summary judgment and attorneys fees. For the years that the foreclosure action was languishing in legal limbo due to the inaction of Plaintiffs, attorneys fees, late payment fees, and unpaid mortgage payments have grown to insurmountable levels. 

 

Its going to get crowded underneath the bridge.

Baby Boomers Beware

Be Careful Out There!

"Rocco, Moose -- help grandma find her wallet."

For those of us who still have home equity and are over 62 years of age, yet another peril lurks.Reverse mrotgages are hawked on TV by some well known actors. One of those actors, is remembered for the over the top sit-com episode now known as "Jump the Shark". Need I say more?

I was surprised to learn that it is even possible to default on a reverse mortgage. Since I thought a reverse mortgage is your home equity coming back to you in an orderly fashion, I had to read the article to learn more.

According to a May 5, 2013 Wall Street Journal article, titled: "Reverse-Mortgage Defaults Increasing",written by Anne Tergesen

"Defaults occur when a borrower fails to pay property charges, including property taxes and homeowners insurance. Of the almost 600,000 reverse mortgages outstanding, 9.8% are currently delinquent, up from 8% in 2011, the first year for which statistics are available, according to the federal Department of Housing and Urban Development, whose Federal Housing Administration insures virtually all reverse mortgages."

I am still researching reverse mortgages to find out if something about them has changed over the years. As I remember from real estate classes, one of the big pitfalls of a reverse mortgage is that you could live too long. A good problem, some would say. But not so good if you outlive your reversed mortgage and thereby render yourself homeless. Mortgage defaults can occur when the homeowner fails to pay real estate taxes or insurance. Likewise the reverse mortgages are usually written to last the duration of the youngest borrower's life. What if the youngest borrower predeceases the elder? And reverse mortgages generally remain in effect so long as a borrower stays in the home. What if a borrower requires nursing home care?

According to the government: Frequently Asked Questions about HUD's Reverse Mortgages

"The Home Equity Conversion Mortgage (HECM) is FHA's reverse mortgage program, which enables you to withdraw some of the equity in your home.  The HECM is a safe plan that can give older Americans greater financial security. Many seniors use it to supplement Social Security, meet unexpected medical expenses, make home improvements and more."

Unfortunately the HUD site does little to explain to seniors the dangers of reverse mortgages. According to a 2012 article in Forbes, "The Hidden Truths About Reverse Mortgages", by Carol Rosenblatt,

• The Elder Might Need A Care Home in the Future
• It Can Affect Any Dependent in the Home
• It Can Go Into Default
• When the Elder Dies, the Heirs Must Pay Off the Loan
• The Amount the Lender Will Loan is Limited

There is more to the story than the rosy pictures shown on TV. We know by now that we have to careful when dealing with anything in the marketplace, particularly anything real estate related - think robo signing et al. And, as people age their analytical skills fade or fail. Letting the buyer beware is not the right thing to do for grandma and grandpa trying to comfortably live out their years.

Get Ready - Foreclosures are heating Up.

The foreclosure world is about to heat up again. Get ready. For reasons I can only guess at the Florida courts are pushing through cases that have been languishing in legal limbo for months and some for years. If you thought that your case had been forgotten, abandoned, or put on the back burner, be aware that it may soon become active.

And, in Florida, if there has been no activity on a case for at least 10 months, the defendant may file a motion to dismiss based on lack of prosecution. Filing the motion may wake the sleeping giant, but the defendant doesn't have a lot to lose in filing.

We are hearing more and more from people in foreclosure because their modification did not go through. More and more homeowners are reporting that they were told they could not qualify for a mortgage modification unless they were behind on their payments. The struggling homeowner then falls behind, sometimes because of the suggestion of the loss mitigation worker - sometimes it just happened, then goes into their trial modification. The trial modification continues for three months. The homeowner dutifully pays the new amount and believes that all is well -- then the lender cancels the modification and begins foreclosure proceedings.  We have heard this scenario repeatedly.

If you are served with a foreclosure complaint be sure to answer it within the 20 day time period. Raise as many affirmative defenses as you can in your answer. Go ahead and raise the affirmative defenses even if they seem to contradict each other.

FIRST AFFIRMATIVE DEFENSE

Although Plaintiff seeks to avail itself of the acceleration remedies available in the Mortgage, Plaintiff has failed to fulfill the necessary requirements enumerated in Paragraph 22 for it to avail itself of the acceleration remedy. Among other requirements, Paragraph 22 requires the Plaintiff as Lender to give notice and an opportunity to cure to Defendant as Borrower, 30 days prior to applying the acceleration remedies and to the institution of any action based on a default of the Mortgage. Plaintiff fails to plead compliance with the notice requirements of Paragraph 22 of the Mortgage.

As the Plaintiff has not met the requirements necessary to bring an action under the
Acceleration Remedies Clause of Paragraph 22 of the Mortgage, this action should be dismissed.

SECOND AFFIRMATIVE DEFENSE

To the extent Plaintiff does not have in its possession the original Note executed by the Defendant, it should be estopped from initiating a foreclosure of the property until such time as the Plaintiff presents the original signed Note before this Court or otherwise shows that the debt in question is owned by Plaintiff.

THIRD AFFIRMATIVE DEFENSE

Plaintiff does not appear to be the proper party in interest in this matter. Defendant demands proof that the Plaintiff was the holder of the Mortgage and Note at the time of filing this action. Plaintiff alleges that it not the owner but is acting on behalf of the servicer. To that end, it appears as if the Plaintiff is not the proper party to maintain this suit. Assuming, for argument purposes only, that the Plaintiff is a true disclosed agent of the owner of the note, it can not sue on its own behalf, rather it can only sue in the representative capacity. See Schurkman v. Stolar, 347 So.2d 653 (Fla. 3d DCA 1977) (Agent lacks standing to sue for debt owed to others on his own behalf).

Based on the documents attached to the Complaint, it appears as if the Plaintiff lacks standing to maintain this action.

***

There are many more possible affirmative defenses that you can raise in your answer. It is appropriate to raise as many as reasonably apply to your situation. If you do not raise a defense in your answer you may be prohibited from using that defense later on.

Research the issues. Research the procedures. No one but you is going to save your home from foreclosure. Consumers that can afford it, hire attorneys to fight the foreclosure. Others go pro se, with or without the help of a legal document preparer. Don't panic, don't hide, and don't become complacent.