Florida Business Law & Civil Litigation FAQS
Below are answers to frequently asked questions about business law and civil litigation, estate planning, landlord-tenant law, and foreclosure defense in Florida. For expert advice and professional assistance in any of these areas, contact Moran, Sanchy & Associates in Sarasota at 941-366-1800.
Business Law & Civil Litigation
Is a noncompete covenant enforceable in Florida?
Yes, so long as it is reasonable. In determining reasonableness, courts will look at the duration of the restriction on competing, the geographic area covered by the agreement, and the scope of business activities which are restricted. Additionally, the employer must be able to demonstrate a legitimate business interest for needing the covenant, such as the protection of trade secrets or maintaining substantial relationships with certain customers. The covenant not to compete must also be in writing and signed by the employee to be valid.
Can a business be sued for unfair debt collection?
The federal Fair Debt Collection Practices Act (FDCPA) places many limits on attempts to collect a debt, such as when a debtor can be called at home or work, and what kinds of statements can and can’t be made. This law, however, only applies to collection agencies and bill collectors. A business owner or other original creditor is not bound by the FDCPA but could still be sued for illegal or abusive practices under Florida law.
There are many legal means of collection activity, including liens, garnishments and civil court proceedings. Debtors may avoid collections by challenging the validity or amount of a debt, or in some cases by filing for bankruptcy. Legal advice and representation will help ensure that collections are conducted legally and fairly.
Are bankruptcy cases litigated in court?
A bankruptcy filing usually does not require a courtroom hearing; it is mostly an administrative proceeding handled by the bankruptcy trustee outside of the courthouse. Sometimes, however, litigation is necessary to resolve a bankruptcy dispute. Bankruptcy litigation may resemble a motion hearing or a full-blown trial, depending upon whether the litigation is an Adversary Proceeding under section 7001 of the Bankruptcy Code or a Contested Matter under Bankruptcy Rule 9014. These proceedings may be necessary to resolve objections to the confirmation of a plan, to subordinate a claim or determine the validity or priority of a lien, to determine the dischargeability of a debt, or to resolve a host of other bankruptcy disputes.
What is the elective share, and how does it work?
A surviving spouse has the option to accept whatever the other spouse left him or her in the will, or to forego that inheritance and instead take the elective share. The elective share equals 30% of the net value of the property of the deceased spouse. A surviving spouse may wish to consult with an attorney about whether to choose the elective share or take under the will.
Should I be concerned about taxes when planning my estate?
Although the federal estate tax can be as high as 40% of the value of the estate, most people are able to take advantage of the estate tax exemption, which exempts the first $5 million of the estate from taxes. Even better, married couples can exempt $10 million from estate taxes with proper planning. Florida does not currently have an estate tax, so it is only the federal estate tax which need concern you. If you have a large estate, we can help you consider other estate tax planning strategies, such as irrevocable trusts.
How does eviction work in Florida?
Eviction is a legal process which must go through the courts to be valid; shutting off utilities or locking the tenant out are not acceptable means for eviction. If the tenant is being evicted for nonpayment of rent, the landlord starts the eviction process by serving a 3-day eviction notice. If the reason for eviction is some other failure to comply with the lease, the landlord serves a 7-day notice. If the lease is month-to-month, a 15-day notice is appropriate. If the tenant does not leave, the landlord files an eviction summons and complaint with the court and has the legal papers served on the tenant. The tenant has five days to answer, or else a default judgment is entered against the tenant. If the tenant does answer the complaint, a trial will be held where the landlord will try to prove the reason or reasons for eviction, and the tenant may present defenses why he or she should not be evicted. If the landlord is granted possession of the property, the landlord obtains a writ of possession which is served on the tenant, who then has 24 hours to vacate the premises or face forcible removal by the sheriff.
What is the difference between eviction and unlawful detainer?
In Florida, an eviction is a legal proceeding to remove a tenant for violation of the terms of the lease, e.g. failure to pay rent, destruction of property, or termination of the lease period. An unlawful detainer is a legal action to remove a person from the premises where there is no lease, agreement to pay rent or landlord-tenant relationship between the parties. Eviction and unlawful detainer are both legal proceedings that are filed in court, and a party to either proceeding should be advised and represented by an attorney to protect important legal rights.
What is a Deed in Lieu?
A Deed in Lieu of Foreclosure is a way to walk away from a home where you are upside down on your mortgage while avoiding foreclosure. It basically involves turning over the deed to the bank, which accepts the deed and skips the expensive and time-consuming foreclosure process. It may even be possible to negotiate a cash settlement from the bank as part of the process, which is sometimes called Cash for Keys. Other options to avoid foreclosure include negotiating a short sale or short payoff. In all of these situations, it is important to obtain an agreement from the bank not to pursue the homeowner for any deficiency – the difference between the cash value of the home and the amount still left on the mortgage. A knowledgeable Florida foreclosure defense attorney will know how to negotiate an effective outcome for the homeowner, as well as provide a defense against any wrongful foreclosure in court.