T S B N Published monthly, excluding July, by the Martin County Bar Association as a service to its membership.

If you have an article, opinion, news or other information for publication in the SideBar, please call Michelle Katzman at (772) 220-8018 or email information to:martincountybarassociation@msn.com

The due date for all advertisements, articles and announcements is the 5th of the month preceding publication.

M F P

Law & Bar Related Committee Reports:Admiralty (Pg. 24)ADR (Pg. 28)Bankruptcy (Pg. 12)FAWL (Pg. 2)Foreclosure (Pg. 20)Judicial Relations (Pg. 23)Justice Teaching (Pg. 16)Lady Lawyers (Pg. 6)Law Library (Pg. 26)Paralegal (Pg. 29)Probate/Trust/Guardianship (Pg. 29)Pro Bono (Pg. 23)Real Property (Pg. 10)Small & Solo Practice (Pg. 29)Social (Pg. 5)Tennis (Pg. 6)Trial Law (Pg. 14)YLD (Pg. 3)

MCBA 2013-2014 E B :President:

George W. Bush, Jr.Vice President:

Jennifer Alcorta Waters

Treasurer:Chad C. Hastings

Secretary:Mark Miller

Immediate Past President:Gregory S. Weiss

Executive Director:Michelle D. Katzman

Voicemail Line: (772) 220-8018 E-Mail: martincountybarassociation@msn.com Website: www.martincountybar.org

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PROFESSIONALISM & DIVERSITY IN THE NINETEENTH CIRCUIT JUDICIAL COURTS

“Isn’t it amazing that we are all made in God’s image, and yet there is so much diversity among his people?” – Desmond Tutu (www.brainyquote.com).

On Friday, May 16, 2014, The Honorable Judge William L. Roby will be presenting, in conjunction with members of the Florida Association of Women Lawyers, a seminar regarding diversity. The goal is to provide diversity awareness and an opportunity for dialogue on diversity issues among members of our legal community in order to emphasize the importance of diversity and analyze the state of diversity in the workplace and our profession.

Seven hundred years of Anglo-Saxon jury tradition can’t be wrong, can it? The justice system of the United States is the finest in the world, in my

Continued On Next Page . . .

M 2014

I T I• President’s Message (Pg. 1)• CLE Luncheon Meeting (Pg. 2, 32)• 2014 Banquet Info. (Pg. 4, 5)• Softball Challenge Recap (Pg. 7)• Reception Invitations (Pg. 13, 24)• 2013 -2014 Committees (Pg. 16)• Bahamas Boat Float (Pg. 17)• Cheers/Member Benefits (Pg. 19)• “Fishing For Fun” Recap (Pg. 25)• Law Day 2014 (Pg. 23)• Calendar of Events (Pg. 31)

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MCBA’s May 16, 2014, CLE LuncheonLocation: THE KANE CENTER (900 SE Salerno Road in Stuart)

Continued From Previous Page . . .

opinion, having studied comparative law and discussed varying legal systems with proponents of those systems of justice.

However, as individuals, we all bring our own perspective into our interactions with each other. When we listen to litigants and witnesses, we utilize everything that made us who we are to evaluate the testimony. For those attorneys who do not litigate, when meeting with prospective clients, you evaluate people utilizing engrained values and beliefs. I sometimes refer to my thinking as “ethnocentric.” In reality, not everyone has the same background, beliefs, and life experiences. Not everyone thinks like I do. It is important for me to always try and remember that fact.

The May meeting at the Kane Center will be an opportunity for us all to think about diversity and for the presenters to provide us with additional skills and assets that will help us to better communicate in not just court-related matters but in all areas of life so that we can make positive impacts in our professional and personal lives. I look forward to seeing you all there.

2013-14 MCBA President

Sincerely,

2013-14 MCBA Presidentntnntntnttntntntntnnnnntntntntnttntntnntntnttntnnntnttntnttnttttttnttttttttnnntnttttnntnttttntntttnnntnntntnnnnnttnnttnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn

On Friday, May 16, 2014, the Executive Board of the Martin County Bar Association (MCBA) will welcome the Honorable Judge William L. Roby as the program coordinator of our monthly CLE luncheon meeting being held at the Kane Center in Stuart (11:45 a.m.).

Thanks to a very impressive grant proposal written by Judge Roby in conjunction with Florida Association of Women Lawyers (FAWL), we have received funds from the Florida Bar Foundation to present: The 19th Circuit Diversity Program. All attendees will receive 2 General CLE credits and 2 Ethics credits. It is sure to be both

informative and entertaining! We hope you will join us.

Additionally, the MCBA will be honoring our 2014 High School MCBA Scholarship recipients at this luncheon. Please join us, along with the students and their families, as we congratulate them. In order to honor requested confidentiality until the scholarships are presented at a special reception at each school, a full summary, including recipient names, will appear in next month’s issue of The SideBar. The Executive Board would like to thank Comerica Wealth Management for its continued co-sponsorship and support of our monthly luncheons.

There is no charge for MCBA members; guests are welcome and can pay the $25 guest fee at the door (RSVP required for both members and guests). To RSVP, please call (772) 220-8018 or e-mail martincountybarassociation@msn.com on or before May 13, 2014.

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Please Join Us!This has been a great year for the Young Lawyers Division! On Saturday, April 5th, we helped support our St. Lucie River with the “Fish for the Future” event at the Oceanographic Society. We had a great turnout from the community as well as the Martin County Bar Association. Enjoy some of the photos taken from the event below; look for a full summary recap in next month’s issue of The SideBar.

Our final Young Lawyers Division happy hour for the year will be Thursday, May 22nd at 5:30 PM at The Refuge Speakeasy located at

2196 SE Ocean Boulevard in Stuart (772-210-6959). It is a 1920’s inspired bar featuring Craft Cocktails, Wine Bar, Craft Beer, Food, Cigars & Live Music (Bootleggers & Flappers welcome) and was named winner of “The Best Drink” at the Taste of Martin County on April 8, 2014. Come out for some libations and meet your peers before this MCBA Bar year is over. Hope to see you there!

YOUNG LAWYERS DIVISION

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The 2014 MCBA Banquet will be held on Saturday, May 17, 2014, at Mariner Sands Country Club. It is sure to be another successful event fi lled with great food, unique entertainment, casino fun and a chance to socialize with your friends and colleagues! If you have any questions, please do not hesitate to contact us at barbcook@barbcooklaw.com or ehunter@sheilabiehl.com. We hope you will join us!!

Note: RSVP deadline is May 7, 2014. Thank you to our Sponsors:

SOCIAL COMMITTEE

Please Join Us!

“Jazz” Entertainment Sponsor:

Bourbon Street Cocktail Hour Sponsors:

Signage Sponsor:

Premier Casino Sponsor:

French Quarter Gold Sponsors:

Platinum “All That Jazz” Sponsor:

Billie Holiday Drink Sponsor:

Maison Bourbon Bronze Sponsor:

Big Easy Silver Sponsor:

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3rd Annual MCBA Tennis Tournament

Look for all the recap details and photos from the April 26th event held at Mariner Sands Country

Club in next month’s issue of The SideBar!

A special thank you to our prize sponsors:

The Lady Lawyers group meets on the last Friday of the month (noon). Join us this month at our new location –

Outback Steakhouse at US 1 in South Stuart.

L L CJoin Us!

Law Offi ce Of Stephen M. Lewen

Social Security DisabilityWorker’s Compensation

Circuit Civil Mediator Representing the injured and disabled for over

33 years.

10 SE Central Parkway, Suite 230 Stuart, FL 34994

Telephone: 772-288-1300 | Fax: 772-288-2135

MARTIN G. HOLLERAN

Circuit Civil Certifi ed MediatorMediating throughout the

19th CircuitTel. No. 772 283 5438Fax. No. 772 283 5438

mgholleran@bellsouth.net

Mediations may be conducted: For your convenience at your offi ces, oroffi ces across from the Courthouse in Stuart

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T -C S TThis year I had the privilege of coaching the Martin County Bar Association softball team in a tournament against the Saint Lucie County Bar Association and the Indian River County Bar Association. Could a tri-county bar softball tournament become an annual event? I certainly hope so, because it was a lot of fun and we got to meet and play softball with some great attorneys! While winning was not the priority for the tournament, I cannot go further without telling you that Martin County prevailed against both Saint Lucie County and Indian River County - I am so proud of the team. This year, rules required co-ed teams with a minimum of four females on the field every inning. Fortunately for the MCBA, Preethi Sekharan, Laurie Buchanan, Heather Wallance-Bridwell and Amanda Kawecki met the challenge for us; all are really good ball players. Ironically, prior to the game, each of them explained to me that they didn’t think they were that good, but, each of them turned out to be awesome. The highlight of the day goes to Jerome Stone. Jerome hit a true homerun. He didn’t quite hit it over the fence, but, it was close enough. He followed that with an almost catch while sliding across the field on his knees. RJ Ferraro also had a nice play with Lillian Ewen. However, Lillian was playing for Saint Lucie fielding a ball at second base when this play occurred. RJ happened to be running right into Lillian on his way to second base…there was a tangle, a roll by RJ across the ground and somehow Lillian was left standing. Since it did rain on the Saint Lucie v. Martin game, RJ was covered in mud, but safe. RJ wasn’t the only one to get dirty. Preethi…uhhh...well let’s just say that she slid into first base. Tom Weiksnar pitched and, for the second time in 2 years, was somehow able to avoid getting his head taken off by a line drive. Ian Cotner, Bryan McLaughlin, David Ginzer, Tyson Waters, Ryan Briggs and Todd Kawecki all had some very nice hits and nice plays as well. I want to give special thanks to the 19th Judicial Circuit Judges who participated. First, Judge Joe Wild played for Indian River County. Judge Wild had several great hits and fielded the ball with more skill than just about any lawyer out there. Second, Judge Curtis Disque played for Martin County and did a great job playing despite being a bit under the weather. He left a bit early, so we missed him, but, it was great to have him on the field. Judge Robert Pegg participated in the games as the field umpire. There were several close calls at second and first. Judge Pegg did not accept any arguments on his calls, if you were out, you were out. He kept order on the field despite any protest. Finally, for the second year, Judge William Roby called the shots at the plate. On slow pitch softball, I still don’t quite understand how to judge a strike vs. a ball. Fortunately for us, Judge Roby does and he was fair in doing so. Everyone who participated agrees: this tournament would not be as good without our judiciary! Once the games were done, we had a great lunch provided by Houck’s Barbeque. The MCBA thanks the Saint Lucie County Bar and especially Lillian Ewen for organizing this event. I also want to thank Barry Cohen of the Indian River County Bar Association for organizing a great team. We also thank Barry for recruiting Dalida Padilla from one of our esteemed sponsors, Matrix Mediation, to play for Indian River County. Lastly, I give thanks to our sponsor and MCBA supporter Legal Consulting Services, Robert and Olga Hamilton, for providing us great photographs of the entire event. For the second year in a row, the games were fun, well-organized and the food was excellent. We hope to see you next year either on the field or in the stands. It is my hope that the MCBA can retain the title of softball champions next season! I look forward to it. Enjoy some photos of the event on the next page and visit our Photo Gallery on www.martincountybar.org for more.

============Indian River County Team Roster: Tracy Masters, Barry Segal, Brooke Benzio, Daxton White, Hon. Joe Wild. Jesse Larsen, Adam Chrzan, Blake Smith, Deborah Fromang, Patrick Grall and Dalida Padilla.

St. Lucie County Team Roster: Lillian Ewen, Steve Ziskinder, Gaby Radcliffe, Nico Apfelbaum, Molly Shaddock, Stephen Smith, Kevin Griffin, Steve Tierney, Daryl Isenhower, Andrew Clopman, Victoria Adkins, Dana Apfelbaum (mascot) and Coach Nick Ewen.

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Real Property and Business Litigation Summary ReportCondominium Ass’n of La Mer Estates, Inc. v. Bank of New York Mellon Corp., --- So.3d ----, 2014 WL 620238 (Fla. 4th DCA 2014).A default fi nal judgment based on a complaint which fails to state a cause of action is voidable, not void, and must be attacked within one year under the restrictions of Florida Rule of Civil Procedure 1.540. Confl ict is certifi ed with decisions from the First and Third Districts as to this issue of law.

Keane v. President Condominium Ass’n, Inc., --- So.3d ----, 2014 WL 626710 (Fla. 3d DCA 2014).

A condominium parking space may consist of a revocable license.

Ekonomides v. Sharaka, --- So.3d ----, 2014 WL 866149 (Fla. 2d DCA 2014).A proposal for settlement which offers to pay $100 upon the opposing party is not ambiguous (i.e., it is enforceable) because the statute provides the trial court shall have continuing jurisdiction to enforce settlement agreements.

Hunter v. Aurora Loan Services, LLC, --- So.3d ----, 2014 WL 847477 (Fla. 1st DCA 2014).A witness must have personal knowledge of how the business records are made in order to lay the foundation to testify on the business records sought to be introduced.

BG Group, PLC v. Republic of Argentina, --- U.S. ---, 134 S.Ct. 1198 (2014).Courts typically determine whether an arbitration agreement exists, but whether conditions precedent apply is determined by the arbitrators. A “local litigation provision” is a condition precedent to be determined by the arbitrators.

Lawson v. FMR LLC, --- U.S. ---, 134 S.Ct. 1158 (2014).Whistleblower protection under Sarbanes–Oxley extends to employees of private contractors and subcontractors serving public companies.

Law v. Siegel, --- U.S. ---, 134 S.Ct. 1188 (2014).A bankruptcy court’s inherent powers under 11 U.S.C. § 105 (a) cannot expand upon or override specifi c statutory authorizations in the bankruptcy code. A bankruptcy court may not deny a homestead exemption on a basis not set forth in the statute.

Deutsche Bank Nat. Trust Co. v. Plageman, --- So.3d ----, 2014 WL 948882 (Fla. 2d DCA 2014).A loan servicer may verify a complaint fi led on behalf of the loan owner, thus satisfying Florida Rule of Civil Procedure 1.110(b), without providing proof that it has authority to verify the pleading. Elston/Leetsdale, LLC v. CWCapital Asset Management LLC, 87 So.3d 14 (Fla. 4th DCA 2012), is distinguished because the servicer in Elston fi led the foreclosure on its own behalf and not on behalf of the owner.

Marvin M. Brandt Revocable Trust v. U.S., --- U.S. ---, 134 S. Ct. 1257 (2014).An easement is a non-possessory right to enter and use land which may be lost through abandonment. Upon abandonment, the servient tenement (owner) is freed of the easement burden. There is no reversionary interest with an easement because the servient tenement has not given an interest in real estate subject to reversion.

R E C L U

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Accardo v. Brown, --- So.3d ----, 2014 WL 1057291 (Fla. 2014).The Doctrine of Equitable Ownership provides that a person is deemed an owner of real property and may be taxed thereon if they have all the benefi ts and obligations of ownership, notwithstanding they do not possess legal title.

Basulto v. Hialeah Automotive, --- So.3d ----, 2014 WL 1057334 (Fla. 2014).A “meeting of the minds” is required for an enforceable arbitration provision. Both procedural and substantive unconscionability are required to invalidate an otherwise valid contract, but the two requirements may be on a sliding scale (i.e., both not required to the same degree) as the “more substantively oppressive the contract term, the less evidence of procedural unconscionability is required . . .”

A to Z Properties, Inc. v. Fairway Palms II Condominium Assoc., Inc., --- So.3d ----, 2014 WL 1031407 (Fla. 4th DCA 2014).A purchaser of property at tax deed sale is not liable to a condominium association for unpaid association assessments that accrue prior to the issuance of the tax deed.

Montanez v. Publix Super Markets, Inc., --- So.3d ----, 2014 WL 1255333 (Fla. 5th DCA 2014).A party’s handwritten answers to interrogatory questions sent to her attorney (which attorney then helped with “phraseology”) are attorney-client privileged communications.

Aldrich v. Basile, --- So.3d ----, 2014 WL 1240073 (Fla. 2014).After-acquired property is subject to the rules of intestate succession.

Trans Healthcare, Inc. v. Creekmore, --- So.3d ----, 2014 WL 1230498 (Fla. 3d DCA 2014).An interlocutory out-of-state order appointing a receiver is not entitled to full faith and credit under the Florida Uniform Enforcement of Foreign Judgments Act, Florida Statute § 55.501, because it is not a fi nal judgment.

Lexmark Intern., Inc. v. Static Control Components, Inc., --- S.Ct. ----, 2014 WL 1168967 (2014).The “zone of interest test,” and not “prudence,” determines whether a federal court must hear a controversy on a federal statute, abrogating Elk Grove Unifi ed School Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98.

U.S. v. Quality Stores, Inc., --- S.Ct. ----, 2014 WL 1168968 (2014).Severance payments are “wages” from which FICA payments must be withheld.

In re Custom Contractors, LLC, --- F.3d ----, 2014 WL 1226852 (11th Cir. 2014).A defendant seeking to employ the “mere conduit or control” defense in order to avoid liability as an initial transferee under 11 U.S.C. § 550 must demonstrate “(1) that they did not have control over the assets received, i.e., that they merely served as a conduit for the assets that were under the actual control of the debtor-transferor and (2) that they acted in good faith and as an innocent participant in the fraudulent transfer.”

==================================

Manuel Farach is Of Counsel to Richman Greer, P.A., in West Palm Beach and practices in the areas of Real Estate, Business Litigation, and Appellate Law. Request the weekly version of the Case Law Update by sending an email to mfarach@richmangreer.com and writing “Request Update” in the subject line.

Continued From Previous Page . . .

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According to the latest statistics reported by U.S. bankruptcy courts, total filings continued to decrease in 2013.

Nationwide, individuals and businesses filed 1,107,699 bankruptcy petitions in 2013, 12 percent fewer than in the previous year and the lowest total since 2008, when 1,042,806 petitions were filed. 2013 was the third consecutive yearly decline,

marking a cumulative drop of 31 percent from the 1,596,355 petitions filed in 2010.

Most consumer (i.e. non-business) petitions, which constituted 97 percent of all petitions in 2013, are filed under either Chapter 7 or Chapter 13. Under both chapters, debtors may receive a discharge of eligible debts upon completion of bankruptcy. Most business petitions are filed under Chapter 7, through which businesses cease operations and liquidate assets, or Chapter 11, through which businesses reorganize and continue operating.

Filings under Chapter 7 fell 14 percent in 2013 and accounted for 68 percent of all filings, down from 69 percent in 2012 and 71 percent in 2011. Business Chapter 7 petitions dropped 19 percent and accounted for 67 percent of all business filings, down from 69 percent in 2012.

Filings under Chapter 13 decreased 8 percent to 343,651. Non-business Chapter 13 petitions fell 8 percent and amounted to 32 percent of all non-business petitions, up from 31 percent in 2012. Chapter 13 petitions filed by individuals with predominantly business debts fell 16 percent to 2,844 and constituted 8 percent of all business filings, the same as 2012.

Chapter 11 filings declined 10 percent to 9,564. These cases accounted for 1 percent of all filings, the same as in 2012. Chapter 11 petitions filed in 2013 constituted 23 percent of all business filings, up from 22 percent in 2012.

Bankruptcy Committee

Continued On Next Page . . .

BANKRUPTCY FILINGS ARE DOWN! Total Filings Continue to Decrease Nationwide.

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The complex relationship between bankruptcy filings and other economic factors—including unemployment, foreclosures, and consumer confidence—means that the continuing decline in bankruptcy filings does not necessarily indicate broader economic well-being. Filings may fall back in response to lack of access to credit, lower consumer confidence, lower unemployment, or fewer foreclosures.

For those in the Southern District of Florida, filings only fell 2.5%, one of the lowest reductions in the country, which may well be due to the accelerations in foreclosures under the new rules.

NEED MORE INFORMATION OR HAVE QUESTIONS?Contact Jon L. Martin, Chair: jlm@jonlmartinlaw.com

Upcoming Event Information:

• NACBA – 23rd Annual Convention, April 23-26, 2015, Chicago, IL

• ABI – Student Loan Debt Crisis Symposium, May 30, 2014, Georgetown University Law Center, Washington, DC

• ABI – Southeast Bankruptcy Workshop, July 24-27, 2014, the Ritz-Carlton, Amelia Island, FL

• ABI – Complex Financial Restructuring Program, November 6, 2014, University of Pennsylvania Wharton School of Business, Philadelphia, PA

• ABA – 2014 ABA Magnitude 360 Annual Meeting, August 8-10, 2014, Boston, MA

Continued From Previous Page . . .

All MCBA Members Are Invited!The Financial Planning Association of the Gold Coast is hosting a networking event on Thursday, June 5, 2014 from 6:00pm to 8:00pm at the Four Seasons Resort Palm Beach's Jove Kitchen & Bar. Admission to the event is free; each attendee will be responsible to pay for their own drinks, appetizers, etc. We hope you will join us!

The Four Seasons Resort Palm Beach is a 5-star oceanfront hotel located at 2800 South Ocean Boulevard in Palm Beach.

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Please join us at our next Trial Lawyers Committee meeting on May 8, 2014 (Noon), at the Law Firm of Gunster, Yoakley & Stewart. P.A. (800 SE Monterey Commons Boulevard, Suite 200, in Stuart). Our guest speaker will be Chad Hastings, Esquire, of the Law Firm Lesser Lesser Landy & Smith.

Mr. Hastings is the Treasurer of the Martin County Bar Association and the President of the Treasure Coast Justice Association. He will discuss how young lawyers can fi nd mentoring opportunities within the Voluntary Bar Associations in the Treasure Coast. Furthermore, Mr. Hastings will discuss how lawyers

can utilize the Treasure Coast Justice Association to streamline the practice of law, making their practice more professional and less stressful. Mr. Hastings’ presentation is expected to be Florida Bar approved for 1 CLE credit.

Lunch will be provided from Carson’s Tavern. If attending, please RSVP as soon as possible to Florence Soto at fl orence@cushniemcmahonlaw.com. I look forward to seeing you there!

TRIAL LAWYERS COMMITTEE

All Are Welcome!

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wherever the case takes youWorld-class deposition services

DBA Hobart Deposition Servicesin Martin and St. Lucie Counties

Trish Moore Tel: 561-596-7809 Email: tmoore@esquiresolutions.com

Joseph Beckman Announces The Relocation of His Practice to

Tel Aviv, Israel

I have thoroughly enjoyed my time in Martin County and I have the highest regard for the professionalism exhibited by members of the Martin County Bar Association. I will remain available for intellectual property counseling and filing of U.S. federal patent, trademark and copyright applications.

I may be reached world-wide at 772-266-0097 or via email at jbeckman@intellectlawgroup.com or jsbpatents@gmail.com.

I wish everyone good fortune and encourage my friends and colleagues to keep in touch.

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772-285-9934

J T

For information about Justice Teaching, please contact Judge Roby at:772-288-5560, robyw@circuit19.org

or visit the website at: http://www.justiceteaching.org.

We Want You!

The MCBA Has More Than 25 Specialty Committees!

Visit our website www.martincountybar.org for contact information for our Committee Chairs; the Committee link is on the Home Page. Contact the ones you are interested in to get involved and/or for more information about attending their meetings.

The Executive Board thanks our 2013 – 2014 Committee Chairs for their time and support of the MCBA.

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BUSINESS & FINANCIAL LITIGATION / APPEALS

West Palm Beach, Fla. | 561.835.0900 beasleylaw.net

complex issues require creative solutions[ [

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News From Your Friendly Neighborhood Bar

Please send us your news of new hires, promotions, awards, engagements, marriages,child births, new addresses and the like for future issues of the SideBar.

YYYYYYYYYYYYYYYYYYYYYY

Congratulations to Lesser, Lesser, Landy & Smith (LLL&S) on its 87 Years of Service to Palm Beach County and the Treasure Coast. LLL&S is one of the oldest law firms in Palm Beach County, with 11 attorneys and almost 30 employees, with 3 office locations, helping seriously injured accident victims and their families throughout South Florida.

Legal Consulting Services, Inc., takes professional head-shot photos at each of our monthly luncheon meetings at no charge for MCBA members. These photos will be used in the Directory posted on our website. Ask Olga for details on how you can also use them for your own marketing purposes.

Spraker & Prinz, a partnership of PA’s, announces that they have moved to the Seacoast National Bank Center at 819 SW Federal Highway (Suite 106) in Stuart.

Visit us on the web www.martincountybar.org.

Limited to 1 per year.

Any article appearing herein may be reproduced provided credit is given both to The SideBar and the author of the article. Views and conclusions expressed in articles and ads herein are those of the authors or advertisers and not necessarily those of the officers, directors, or staff of the Martin County Bar Association. Further, the Martin County Bar Association and staff do not endorse any product or service advertised. All advertising is subject to approval. We regret any errors or omissions and such, if applicable, will be noted in future issues.

Many of the professional headshot photos have been provided courtesy of: Legal Consulting Services, Inc.

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F L C

Greetings; here are some cases of possible interest:

Hunter v. Aurora Loan Services, LLC (1st DCA March 4, 2014) is a very important case. The homeowner appealed a final judgment entered against him in Leon County, asserting Aurora lacked standing to sue for foreclosure. He argued the trial court relied on evidence incorrectly admitted under the business records’ exception to the hearsay rule to find Aurora held the promissory note, when the lawsuit commenced. The 1st DCA agreed and reversed the lower court’s ruling. The Court reasoned the witness’ testimony failed to establish the necessary foundation for admitting the Account Balance Report and the consolidated notes log into evidence under the

business records’ exception. The witness was neither a current nor former employee of the prior servicer, and otherwise lacked particular knowledge of the prior servicer’s record-keeping procedures. Absent such personal knowledge, he was unable to substantiate when the records were made, whether the information they contained derived from a person with knowledge, whether the prior servicer regularly made such records, or whether the records belonged to the prior servicer in the first place. The Court held his testimony about standard mortgage industry practice only arguably established such records were generated and kept in the ordinary course of mortgage loan servicing. The Court further held that the Account Balance Report and consolidated notes log Aurora relied on were incorrectly admitted into evidence as business records and, therefore, could not serve to establish Aurora’s standing to sue the homeowner in foreclosure.

Samaroo v. Wells Fargo Bank (5th DCA March 28, 2014) is another very important case. The 5th DCA agreed that the bank failed to satisfy the notice requirement of section 22 of the mortgage as a condition precedent to foreclosure. The Court found the notice did not inform the borrowers of their right to reinstate after acceleration. It merely informed them that “acceptance of payments for less than the amount required to cure the default shall not be deemed to reinstate the loan or make any acceleration.” Wells Fargo claimed it “substantially” complied with the notice requirements. The 5th DCA didn’t buy it and found the failure to include the right to reinstate an “obvious and crucial omission.”

Lopez v. Bank of America, NA (2d DCA March 26, 2014). The bank voluntarily dismissed its foreclosure action against the homeowners, and the homeowners sought attorney’s fees pursuant to Rule 1.420(d), which addresses costs awardable to a defendant when a plaintiff voluntarily dismisses a case. But the homeowners had not pled entitlement to attorney’s fees in their answer to the bank’s complaint. The circuit court denied their motion for fees. The 2d DCA affirmed, holding that when a plaintiff voluntarily dismisses a complaint, a defendant may be awarded attorney’s fees as costs under Rule 1.420(d) if the parties’ contract or a statute defines fees as an element of costs and the defendant either had given notice that he was claiming fees in his responsive pleading or falls within the exceptions outlined in Stockman and Ajax.

PNC Bank, NA v. Duque (4th DCA March 26, 2014). The bank appealed a trial court order striking its pleadings and dismissing its foreclosure complaint with prejudice, as well as a subsequent order denying its motion to reinstate the pleadings and for rehearing. The bank argued that the court erred in dismissing its complaint for discovery violations. The 4th DCA agreed and reversed, holding that although the trial court’s order considered the six Kozel factors in determining whether a dismissal is warranted, the order lacked specific findings as to each. The Court noted there was no evidence the discovery violations were caused by the bank. Also, remember a dismissal without prejudice is a less severe sanction requiring a lesser showing of bad faith, etc.

May 2014 Foreclosure Law Committee Report

Continued On Next Page . . .

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U.S. Bank, NA v. Vogel (4th DCA March 26, 2014). After judgment in favor of the bank and foreclosure sale at which the property was purchased by a third party, the bank moved to vacate the sale on the basis of mistake. The trial court denied the motion. The 4th DCA reversed and remanded with directions, holding the trial court grossly abused its discretion in refusing to vacate the sale because the bank’s lawyers clearly demonstrated they had made a mistake in failing to notify someone to bid at the sale.

Vantium Capital, Inc. v. Hobson (4th DCA March 26, 2014). In this consolidated appeal, Vantium Capital, Inc., argued the trial court erred in denying its claims for deficiency judgments resulting from mortgage foreclosure sales. The 4th DCA agreed and remanded with directions for the trial court to enter deficiency judgments in favor of Vantium. The Court reasoned that the trial court did not properly apply the burden-shifting framework of Florida law on deficiency judgments. A presumption exists that the foreclosure sale price equals the fair market value of the property. Once the party seeking the deficiency judgment presents evidence of the sale price, the burden shifts to the borrower. Furthermore, the 4th DCA held the trial court abused its discretion in denying the claims for deficiency without any valid legal or equitable reasons for doing so.

U.S. Bank Nat. Asss’n v. Busquets (2d DCA March 21, 2014). In this case, the trial court dismissed the bank’s foreclosure action. The 2d DCA reversed, stating the bank’s notice of default to the homeowner, which referred to possible “foreclosure proceedings,” was sufficient to satisfy the mortgage contract’s requirement that a bank advise of potential of foreclosure by way of “judicial proceedings.” The Court also held the notice of default was sufficient to comply with the requirement to inform the homeowner of his right to reinstate after acceleration.

Lutz v. Bank of New York Mellon (4th DCA March 12, 2014). The 4th DCA held the trial court improperly issued an order setting a non-jury trial and held a trial less than twenty days after the service of the last pleading in violation of Fla. R. Civ. P. 1.440(a).

Deutsche Bank Nat. Trust Co. v. Plageman (2d DCA March 12, 2014). In this case, the trial court dismissed the bank’s foreclosure action. The 2nd DCA reversed, holding as a matter of apparent first impression that a loan servicer’s verification of a foreclosure complaint on behalf of a foreclosure plaintiff is not required to be accompanied by evidence documenting the servicer’s authority to sign. The Court distinguished Elston and Leetsdale because in Elston, the servicer was the named plaintiff. In this case, the servicer was verifying a complaint filed by the bank.

Stevens v. Nationstar Mortg., LLC, (5th DCA March 7, 2014). After entry of a final judgment of foreclosure, following a trial at which the homeowner did not appear, the homeowner filed motions to set aside the judgment. The trial court denied the motions. The 5th DCA reversed, holding the bank’s failure to serve the homeowner with the notice of issue or the order setting trial violated the homeowner’s due process rights and, thus, required the judgment be set aside.

Almonor v. JPMorgan Chase Bank, N.A., (3d DCA March 5, 2014). After FNMA obtained a judgment of foreclosure and certificate of title, it sought a writ of possession for the condo unit in which a tenant resided. The tenant objected to the issuance of the writ, asserting FNMA failed to comply with the Protecting Tenants at Foreclosure Act of 2009. Specifically, the tenant claimed she had a bona fide two-year lease for the unit, which terminated on January 31, 2013, and under the Act, FNMA was required to honor her lease until the end of its term. Over the tenant’s objection, the trial court issued the order directing the issuance of a writ of possession. Chase concedes the order was entered in error for the sole reason it failed to permit the tenant, as a bona fide tenant under the Act, to occupy the unit until the end of the lease term on January 31, 2013. On that basis, the 3rd DCA agreed.

For more information about this committee and for upcoming programming, contact Trent Steele at trent@trentsteele.com.

Continued From Previous Page . . .

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P B C

ONE CLIENT. ONE ATTORNEY. ONE PROMISE.

Imagine the impact we could make if every attorney in the state of Florida helped ONE pro bono client.

If you would like to be “the ONE,” please contact Carolyn Fabrizio at carolyn.fabrizio@frls.org or

Jane Cornett at jcornett@bplegal.com.

W. Jay Hunston, Jr.

Mediator/Arbitrator

Since 2001, limiting his

practice to all forms of effective dispute resolution, including

mediation, arbitration, special master, and private judging

services.

• J.D., Stetson Univ. College of Law • Fla. Bar Bd. Cert. Civil Trial Lawyer, Emeritus • Fla. Cert. Circuit Civil, Appellate & Family Mediator • Member, AAA Roster of Neutrals for Commercial and Construction Arbitration and Mediation • Qualified Fla. Arbitrator • FINRA Approved Mediator • Statewide Per Diem Rate Available Upon Request • Hourly Rates Available (No Charge for Travel Time Within 15th,

19th, and 17th Circuits)

P.O. Box 508, Stuart, FL 34995 (772) 223-5503; (800) 771-7780 - Office (772) 223-4092; (866) 748-6786 - Fax

Email: wjh@hunstonadr.com Website/Online Calendar: www.hunstonadr.com

Law Day 2014If you are interested in volunteering for Law Day 2014, contact Shaun Plymale at: splymale@treasurecoastlegal.com

We are looking for 3 to 5 people to speak on a topic of legal significance in the community. The segments will be recorded by MCTV and replayed throughout the year beginning on Law Day (May 1st).

Each segment will need to be approximately 20 minutes and works best as a question-answer or panel format.

Save The Date

The MCBA’s Annual Judicial Reception

October 9, 2014, at 5:30 p.m.

Look for more details in next month’s issue of The SideBar!

J R C

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A CMaritime vs. Admiralty Law

“Maritime” law is the law of the sea. It refers to the entire body of law, rules, legal concepts and processes that relate to the use of marine resources, ocean commerce, and navigation. It arose out of necessity as man made use of ships to carry goods and passengers and, in written form, dates back thousands of years to Old Babylonian 1800 B.C. cuneiform letters dealing with maritime collisions and ship leasing. The unique quality of the sea and its hazards created the need for legal solutions and doctrines which had no application on land. Maritime law is international in scope. There is broad agreement among nations as to the basic principles, without which international commerce would be diffi cult or impossible.

“Admiralty” Law is the body of statutory and judge-made case law and rules applicable to an individual country. It is narrower than “Maritime” law in that it is the private law of the country and broader in that it covers inland as well as ocean waters. Admiralty courts were fi rst created in England to allow the Crown to control and supervise jurisdiction over maritime affairs considered to be too important to be handled by the local courts. Admiralty courts were itinerant, presided over by Crown-appointed naval offi cers. As naval offi cers, the admirals had responsibility for discipline, as well as maintaining peace and order, and adjudication of maritime cases concerning piracy, wrecks, spoils, and property found at sea. So, too, in the U.S. it is the federal government which controls admiralty courts and the applicable laws and rules.

===========================

Note: All my maritime articles published in The SideBar are available on my website:www.barbcooklaw.com.

The Law Office of & The Law Office of

Michael R. Banks, P.A. Barbara A. Kreitz Cook, Esq.

Are pleased to announce the opening of their new location!

Come join us for a cocktail party on May 8, 2014 from 5:00 - 8:00 PM to celebrate our new office

759 SW Federal Hwy.

Suite 216

Stuart, Florida 34994

Michael R. Banks, Esq.

Telephone: (772) 286-8828

Facsimile: (772) 286-1986

E-mail: mbanks@mrbankslaw.com

Website: mrbankslaw.com

Barbara Kreitz Cook, Esq.

Telephone: (772) 232-8940

Cell: (772) 708-8105

E-mail: BarbCook@BarbCookLaw.com

Website: barbcooklaw.com

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F O R T L A U D E R D A L E | J A C K S O N V I L L E | M I A M I | O R L A N D O | P A L M B E A C H | S T U A R T

T A L L A H A S S E E | T A M P A | T H E F L O R I D A K E Y S | V E R O B E A C H | W E S T P A L M B E A C H

For decades, Gunster attorneys haveserved both individuals and the businesscommunity – and have also been an integralpart of it. We are longtime Stuart residents,business council members, charity leadersand Martin County cheerleaders.

Gunster clients draw upon our wide­rangingexperience, from local and federal litigation toland use, environmental and real estate law,as well as private wealth services.

With 11 Florida offices and an intimateknowledge of the community, Gunster is statewide and state wise.

Representing our Community

Gunster.com | (772) 288-1980

Look for a Recap in Next Month’s SideBar from the “Fish for the Future,” A Family Fun Day Event

At The Florida Oceanographic Coastal Center

April 5, 2014

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Current Available Florida Bar CLE Audiotapes include:

* The annual Survey of Florida Law Audio CDs are supplied by the Florida Bar and are available at no charge to any attorney.** The 5 credits needed for “Ethics” can include credits in legal ethics, professionalism or substance abuse programs.

Book/Essay/Article Highlight:

The law library has books too. Here’s one recent addition to the collection:• Medicare Law, Third Edition 2012 – American Health Lawyers Association. Includes information about Benefi ts and Coverage Under Part A and Part B, Payment for Hospital Services, Payment for Physician Services, Payment for Other Items and Services, Prescription Drug Benefi ts, Medicare Advantage and PACE Plans, Cost Reimbursement, Conditions for Coverage and Payment, Billing, Payment, and Charges, Prohibited Acts and Penalties, Appeals and Reopening and Incentive Payment Programs

The seminars are available free of charge to all current MCBA members through the Law Library. Please e-mail me with your seminar requests: ebuetens@metrolink.net.

To check on existing seminar availability, call Dawn at the Law Library at 221-1427. The Law Library is open Mon.-Thurs., 9:00 a.m.-1:30 p.m.

L L C Law Library Update

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S L O S

O S C S

I , ,

. N D .R - - .

E .

C : C G (772) 288-4059

@ .

Personal InjuryTrial Attorney

J SB C C T

L

S , A , S & M G

561-694-6079jsobel@schwedlawfi rm.com

Offi ces in Palm Beach Gardens and Stuart

Fantastic DOWNTOWN location is available today for a growing organization looking for presence in the professional market. Present Owners remodeled this building in 1999 to service a highly reputable Legal Firm & installed Metal Roof, double paned windows, coffered ceilings, tastefully done millwork, restored Dade County pine flooring & gave the Office Space real Professional Character. With over 3000 sq.ft. this property which sits on 3 city lots & provides reception/lobby area, conference room, staff support areas, 3+ partner offices, study, library, 2 public restrooms, file storage, 2 car garage & best of all 11 parking spots. Asking $599,000.

Kathi Lundstrom, Luxury Specialist 772-288-5101

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This might come as a surprise, but if you really give it some serious thought, your fi rst responsibility, as is the mediator’s and your adversary’s, is to not make matters worse. It is fact, whether the result be resolution or impasse, that the primary goal of every mediation is to improve the position of all parties. If you can’t completely solve the dilemma, at least take one step toward solution before reaching court.

How, as an advocate in mediation, can you accomplish this? In theory it’s simple: Have a plan. Execution of that plan is not so simple, because contained in that plan should be, at least, the following essentials:

• Prepare yourself as if for a mini trial. • Prepare your clients thoroughly as to the process and what participants can expect.• Prepare the mediator by reviewing his engagement letter and honoring his requests in a

mediation memorandum.• Understand that in reality, for feasibly achievable solutions, your mediation is the best--and for

all intents and purposes the only--alternative to trial. In weighing and then risking the certainty of the result which can be positively achieved with settlement against trial, what is it worth to endanger it by the uncertainty, agony and potential of total loss at trial? That’s the reality of impasse.

• Realize that valuing your case provides the touchstone for your negotiation. In the heat of the mediation, if you don’t know the value of your case, you won’t know what offer to make nor what offer to accept or reject.

• Be aware of and appreciate that your “walk-away position” is your walk-away position. Keep it fl uid. As mediation progresses, new information develops, concessions are made, and, consequently, positions are shifting and need to be adjusted.

• Accept that for either side, however, “walk away” is determined by realities found when answering these questions as the mediation ebbs and fl ows:◊ What are the chances of obtaining a favorable outcome? ◊ What will be the potential additional costs?◊ What are your chances of collecting a judgment if you obtain a favorable verdict on a claim

or counterclaim including costs and court awarded costs?• Understand also that you always walk when negotiations go beyond your previously established

settlement range (BATNA) determined by possibilities, probabilities and acceptable outcomes.• Be conscious, rather than unconscious, that discourtesy, arrogance, impatience and bullying

have neither purchase nor infl uence in mediation. Quite to the contrary. It was posited in medieval times that only four professions existed: divinity, law, medicine and the “world’s oldest.” Determine to which profession you belong, and conduct yourself accordingly. It’s up to you where you fi t in.

Obviously, there are a plethora of additional elements you might consider for inclusion in your own plan. However, my previous commitment to readers is to limit my thoughts to around 500 words or so. If I have given you any ideas which you would like to share, please don’t hesitate to communicate with me.

Alternative Dispute Resolution Committee

MEDIATION, DON’T FOUL IT UPSubmitted By: Martin G. Holleran, Mediator

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P / S & S C

The next Probate, Trust & Guardianship Committee meeting will be held from 12:00-1:00 p.m. on Thursday, May 8, 2014, at the offices of Fox, Wackeen, et al. (The Tower Building at Willoughby Commons, 3473 SE Willoughby Boulevard, Stuart). Lunch will be provided as usual.

If you plan on attending, please RSVP to rshaffer@jfpalaw.com by May 3rd at the latest.

P , T L & G C

The meeting on April 2nd was great! Thank you, Barbara Cook, for presenting Admiralty and Maritime Law; it is a very interesting topic to say the least. It is fun learning something about a topic so specialized.

Join us for our next meeting on May 14th at noon at Michelina’s Restaurant & Pizzeria (835 SE Federal Highway in Stuart). Jason Berger, Chair of the Small and Solo Practitioner Committee, and I welcome you for the 4th Annual Small and Solo Practitioner/Paralegal Committees meeting. Our guest speaker is Chief Judge of the 19th Circuit, Steven Levin. The topic will be “Court Rules Updates and Paralegal Ethics.” So we can send you all the final meeting details, please RSVP by emailing: mcbaparalegelcommittee@gmail.com. We look forward to seeing you there!

All Are Welcome!

30

Gulfstream Business Bank’sL.A.W. Service for your practice

Gulfstream is a locallyowned niche bank thatfocuses on professionalsand business owners.

We have designed(Lawyer’s Automated Wire System)L.A.W. Service to helpyou meet your practicesgrowing financial needs.Call us and find out howmany ways we can help aprofessional practice likeyours!

Here is what L.A.W. can do for you!• Automated fax confirmation for any

wire transfers

• E-mail sent to officemanager for wire transfer• Receipt providesdate, beneficiaryinformation and atracking number• Template formatto allow for repetitiverecipients• Uses ABAconfirmation tables toreduce errors

• Interfaces with our on-line wire transfer system• Acceptance of fax requests for outgoing wires• Call back to verify authenticity

www.gsbb.com • info@gsbb.com

909 SE Fifth AvenueDelray Beach, Florida

561-665-4200

2400 SE Monterey RoadStuart, Florida772-426-8100

9815 South US Highway #1Port St. Lucie, Florida

772-408-5940

BUSINESS & PROFESSIONAL BANKING • INVESTMENT MANAGEMENT SERVICES • CASH MANAGEMENT • RESIDENTIAL MORTGAGES

Roy Warren772-426-8160

Tammy Roncaglione772-408-5942

250 S. Central BlvdJupiter, Florida561-354-4200

George Haley772-426-8155

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M C B APO B 2197S , FL 34995-2197

When:Where:Menu:*

Speaker:CLE’s:

RSVP:

There is no charge for MCBA members. Guests are welcome to attend.A $25 guest fee may be paid at the luncheon. RSVP required for members and guests.

To keep costs down, we are only having meals prepared for the numberof MCBA members and guests who RSVP.

We would love to see you but need to know you are coming! Please RSVP.

Friday, May 16, 2014, at 11:45 a.m. Kane Center, 900 SE Salerno Road, StuartTomato, basil and mozzarella salad, pan seared chicken with Tuscan cream sauce, vegetable and starch (chef’s choice), and mini chocolate lava cakes (*Please indicate specialty meal if needed when you RSVP.)Diversity with The Honorable William L. Roby and FAWL2 General CLE’s and 2 Ethics CLE’s

RSVP: No later than Tuesday, May 13th

(772) 220-8018 or via martincountybarassociation@msn.com

Please Join Us for MCBA’s May 16, 2014, Luncheon Meeting

REMINDER: RSVP DEADLINE FOR BANQUET TICKETS IS MAY 7th (See Page 4).