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Notice to Owner

11/26/2013

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In Palm Beach Gardens, Jupiter, Palm Beach County and throughout Florida, laws exist setting forth lien rights of laborers, material suppliers and others.  The laws exist to protect both the property owner and the person or company providing services or materials to improve the real property.  Most of these laws are found in Chapter 713 of the Florida Statutes.

Florida Statutes section 713.06, pertains to what is called a "notice to owner".  The notice to owner is simply a written notice provided to a property owner by any person or company providing labor, services or materials to improve the real property who is not in privity with the property owner.  That is, they do not have a direct contract with the property owner.  The notice to owner puts the property owner on notice that someone other than those who have a direct contract with the owner are providing labor or materials that will improve the property and that the owner should obtain proof that the person or entity providing the notice to owner is paid for their labor or materials.  If the property owner does not ensure that all those who provide a notice to owner are paid, the property owner runs the risk of having to pay those who were not paid, even if the property owner has paid the general contractor for the work or materials.  Conversely, if a potential lienor does not serve a notice to owner in compliance with the statute, that lienor loses all of its lien rights.

The notice to owner statute contains very important information, including when a notice to owner must be served.  Pursuant to the statute, a notice to owner must be served no later than 45 days from when the lienor commences furnishing materials and/or labor at the site of the improvement pursuant to a contract.  Additionally, a notice to owner must be served prior to the final payment being made in reliance on a final contractor's affidavit. 

Also found in Florida Statute section 713.06 is a form notice to owner.  Anybody drafting a notice to owner must take notice of the form and be certain that their notice to owner contains the warnings required by the statute which are included in the form. 

Florida's Lien Law is complicated and it contains many requirements and nuances that must be followed.  If you are interested in retaining my services relating to Florida's Lien Law in Jupiter, Palm Beach Gardens or throughout Florida, please feel free to contact me at (561) 602-4447 or  liz@elizabethmontgomerylaw.com or visit my website at www.elizabethmontgomerylaw.com or www.jupitercollectionsattorney.com.

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Judgments as Liens against Real Property in Jupiter, Palm Beach County and throughout Florida

10/23/2013

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In last month's blog, I discussed different methods to use when attempting to collect on a money judgment in Jupiter, Palm Beach County and throughout Florida.  One of the methods discussed was the recording of the judgment in the official records of any county where the judgment debtor may own land or real property.   This blog post will cover more details regarding recording of final judgments in Palm Beach County and any other county in Florida.

In order for a recorded judgment to act as a lien against real property, the provisions of Florida Statutes §55.10, pertaining to judgments, orders and decrees, must be followed.  Subsection (1) of this Florida Statute provides as follows:

A judgment, order, or decree becomes a lien on real property in any county when a certified copy of it is recorded in the official records or judgment lien record of the county, whichever is maintained at the time of recordation, provided that the judgment, order, or decree contains the address of the person who has a lien as a result of such judgment, order, or decree or a separate affidavit is recorded simultaneously with the judgment, order, or decree stating the address of the person who has a lien as a result of such judgment, order, or decree.  A judgment, order, or decree does not become a lien on real property unless the address of the person who has a lien as a result of such judgment, order, or decree is contained in the judgment, order or decree or an affidavit with such address is simultaneously recorded with the judgment order or decree. 

Subsection (1) also provides that any judgment recorded pursuant to this subsection on or after July 1, 1994, "shall be a lien in [the county where it was recorded] for an initial period of 10 years from the date of the recording."  After the initial 10 years, the judgment lien may be extended by rerecording a certified copy of the judgment "prior to the expiration of the lien."  F.S. §55.10(2).  No judgment liens created by Florida Statutes §55.10 are valid for more than 20 years.  F.S. §55.10(3).

As I've said before, there are additional rules and nuances contained within Florida law that must be followed.  If you are interested in retaining my services to attempt to obtain a judgment and then collect on it for money that is owed to you or your company in Jupiter, Palm Beach Gardens or throughout Florida, please feel free to contact me at (561) 602-4447 or  liz@elizabethmontgomerylaw.com or visit my website at http://elizabethmontgomerylaw.com.

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Collection of Money Judgments in Jupiter, Palm Beach Gardens and throughout Florida

9/27/2013

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When a person or company owes you money, it may be necessary to take them to court in an effort to collect what is owed.  If you are successful, you may obtain a money judgment.  Obtaining a money judgment does not automatically take money from the judgment debtor and give it to the judgment creditor.  After the judgment is obtained, there are other steps that may be necessary to collect what is owed pursuant to the judgment.

The Florida Small Claims Rules, applicable in Jupiter, Palm Beach County and throughout Florida, contain what is called a "Fact Information Sheet".  Fla.Sm.Cl.R., Form 7.343.  This form is helpful to the judgment creditor in that it requires the judgment debtor to list assets and income that may be used in satisfying the judgment.

Another way to ascertain the assets of a judgment debtor is to subpoena the debtor for what is called a "deposition in aid of execution".  At that deposition, the creditor will have an opportunity to inquire of the debtor, under oath, regarding all of the assets and liabilities of the debtor.  The creditor may also require the debtor to produce documents substantiating the debtor's financial condition.

Garnishing wages or bank accounts is another way to partially or fully satisfy a money judgment.  A creditor can find out about a debtor's employment or where the debtor may maintain bank accounts by requiring the debtor to complete the Fact Information Sheet mentioned above or by taking a deposition in aid of execution.

The judgment creditor should also record a certified copy of the judgment in the official records of any county where the judgment debtor may have land or real property pursuant to Florida Statutes section 55.10.  The recording of the judgment pursuant to the terms of this statute creates a judgment lien against any land or real property owned by the judgment debtor in the county where the judgment is so recorded.  For example, if a creditor obtains a money judgment against a debtor who owns property in Jupiter or Palm Beach Gardens, the creditor should record a certified copy of the final judgment in the Official Records of Palm Beach County, Florida.

This blog post briefly covers some tools that are available to a judgment creditor in satisfying a money judgment.  There are additional rules and nuances contained within Florida law that must be followed.  If you are interested in retaining my services to attempt to obtain a judgment and then collect on it for money that is owed to you or your company in Jupiter, Palm Beach Gardens or throughout Florida, please feel free to contact me at (561) 602-4447 or  liz@elizabethmontgomerylaw.com or visit my website at http://elizabethmontgomerylaw.com

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Summary Judgment

8/15/2013

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Sometimes litigants think they have a "slam dunk" case.  While this may be true on certain occasions, there are many factors involved in being successful in a lawsuit.  Remember, there are two sides to every story which will eventually be presented to a neutral third party, be it a judge or jury.  Also, and sometimes more important, is the application of the law to the facts.

When there is no question as to the material or key facts of a case, there may be no need to prolong the matter and present it to a jury or judge at trial, which can be costly and time-consuming.  When the facts are not at issue, the only matter to be decided is whether the law as applied to the agreed-upon facts means that one party will be the winner.  When there is no question of fact and the only matter to be decided is a legal issue, the matter can be decided on what is called "summary judgment".  Rule 1.510, Florida Rules of Civil Procedure, pertains to the summary judgment procedure.  This rule states, in part, as follows:

The judgment sought shall be rendered forthwith if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Either party, plaintiff or defendant, may move for a summary judgment if he believes that the law supports either his claim if plaintiff or defense if defendant.  A motion for summary judgment must be supported by sworn affidavits setting forth the facts.   "The burden of proving the absence of a genuine issue of material fact is upon the moving party."  Holl v. Talcott, 191 So.2d 40 (Fla. 1966).  See also Visingardi v. Tirone, 193 So.2d 601 (Fla. 1966), citing Harvey Bldg., Inc. v. Haley, 175 So.2d 780 (Fla. 1965)(the party moving for summary judgment must show conclusively that no material issues remain for trial).  A party opposing a summary judgment may file affidavits contesting the facts set forth by the moving party.

Once the moving party has met its burden of showing the absence of a genuine issue of material fact, the burden shifts to the non-moving party to show that such an issue does exist.  See Woodruff v. Government Employees Ins. Co., 669 So.2d 1114 (Fla. 1st DCA 1996)("Where a movant for summary judgment offers sufficient evidence to support its claim of the nonexistence of material fact, the opposing party must demonstrate the existence of disputed issues of fact either by presenting evidence of countervailing facts or justifiable inferences from the facts presented.  If the opposing party fails to present such evidence, summary judgment may be entered in favor of the moving party.").

The purpose of the summary judgment procedure is to avoid the expense and time of a trial when there is no dispute as to the facts material to the matter.  However, it is important to keep in mind that the moving party bears a heavy burden to show that there are no issues as to the material facts and that not all cases are appropriate for the summary judgment procedure.  There are also time considerations and deadlines set forth in the Florida Rules of Civil Procedure which require strict compliance.



For more information please visit http://elizabethmontgomerylaw.com

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Is There Any Substitute For Real Legal Advice From An Actual Lawyer?

7/18/2013

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These days it is fairly common to hear someone say, "I'll check with my guy about the collection laws (substitute any legal matter here) in Florida and get back with you".  In the age of the Internet, everyone has a "go to" for legal advice (like any one of the monthly prepaid legal services), but does that really substitute for real-time legal advice?  Most times the answer is a firm NO. 

For certain big box, one solution fits all, online legal portals have value, but not when it comes to specific circumstances regarding a specific legal matter.  In cases like this, there are no substitutes for having a lawyer  who is only concerned with the matter at hand, your legal matter, looking over the supporting documents, your story and facts.  The cross-questioning that ensues is an invaluable part of the legal process and should never be overlooked.  Consider that many individuals need to feel the support and consult of an attorney they can openly interact with in order to feel comfortable with the facts of the case moving forward.  Questions arise out of everyday interaction in every other element of life, what wouldn't that apply to the law?

When considering any legal matter, I implore you to speak to a local attorney before making any other moves.  The information you get through this personal consultation may make the difference between spending countless hours delving through a slew of problems in bringing your case to completion.  There is no substitute for professional representation!

For legal questions or more about Jupiter, Florida Attorney Elizabeth Montgomery, please visit
http://jupitercollectionsattorney.com

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    Attorney Elizabeth Montgomery Specializes in Construction Law, Landlord / Tenant Law, Collections Law, Civil Matters, Contracts and Commercial Law in Jupiter, Florida and throughout the Palm Beaches.

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