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Community Associations Navigate COVID-19

Community Associations Navigate COVID-19

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The role of a Community Association Manager is both innately complex in how it gets done, but also quite pointed when it comes to the main objective: to ensure increasing connectivity and value within the community. Attorneys can play a big role in how they help. There are many legal crossroads that can make navigation complex, and that is where a great lawyer can help you through the process. As one might imagine, COVID-19 has placed upon us new challenges to overcome. In this article, The Orlando Law Group is here to help Community Associations navigate COVID-19 and any hurdles they may be facing.

We are always striving to become your source for information that can help you navigate these crossroads, and below, you will find some questions and answers to help during this time. If there is something specific that your community is undergoing, do not hesitate to reach out to us. So many times, people have niche problems that require specific answers. What if someone tests positive within the community?

What if someone tests positive for Covid-19 within the community?

There are really two perspectives of thought if someone tests positive for Coronavirus. On one hand, you must have the community’s best interests in mind, but you must also protect the privacy of the individual. If the individual gives permission, you can disclose their name. This can be specifically helpful because it will allow anyone who believes they have met that individual to get tested as well.

What if the person wants their identity kept from the community?

If that person wants to be kept anonymous, you still may want to let the community know that an individual has tested positive. This will allow them to take more precautions and at the very least be aware. You want to avoid potential liability if a board becomes aware of a concern and simply fails to notify the community in any way. Silence simply could result in damages and liability, which we want to stave off at all costs.

How should Community associations navigate shared facilities during this time?

You might be asking yourself, what about our gym? What about the common areas? It all depends on whether the board feels that closing those facilities down will preserve the health of the community. No matter what the action, it should always be done because it is in the best interest for the owners and people that live there. If such actions are executed, clearly written notifications should be produced.

Should this affect the Association’s collections?

One of the complications that COVID-19 has placed upon us is the fact that many are out of work and are struggling financially. As Community Associations navigate COVID-19, they must stay sympathetic yet strong. The hard truth is that because collections are a part of the annual budget, they cannot be waived. We recommend carrying on with collections as usual, and if special circumstances are needed, apply them as temporary assistance only. The money owed cannot and should not be waived no matter how hard the struggle may be, only to preserve the fairness of what is written in the agreements that have been signed by the owners.

How Should community Associations navigate potential renovations?

For the time being, having contractors enter the community may be on an emergency basis. Although it may be a complicated issue to navigate, the risk of having COVID-19 spread could be very dangerous indeed. Activities such as open houses and showings should be avoided, and work on the property should only be accomplished if it is necessary.

Although we are beginning to enter Phase Two of getting back to business, we want to remain cautionary with our approach. It is very important that you remain in good communication and dialed in to what your community needs during this time. If complications arise, you can be ahead of the game if you are clued into what is on their minds.

As lawyers, it is our intent to help clients navigate complicated issues, and many times that involves being caught between two objectives. With COVID-19, keeping the community thriving as well as safe and healthy are very important aspects of what Community Associations aim to achieve. We want you to stay encourages as your Community Association navigates COVID-19 during this time. How are they accomplishing their goals?

The points above are just the beginning of our journey back to normalcy. It will take time, and there will be hurdles that we face along the way. It is important to remember that, with a moratorium placed on foreclosures and evictions, we could be facing all kinds of complications in time. Having processes and procedures in place to be ready for all possible outcomes will benefit us in the future. As Community Associations navigate COVID-19, The Orlando Law Group is always here to listen, to care, and to help you solve any problems you may be facing. Give our HOA Page a look for more information regarding Homeowners Associations for examples of services we provide.

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Paycheck Protection Program Flexibility Act

[Advisory] Understanding the Paycheck Protection Program Flexibility Act

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Here is a round-up of what we know about the Paycheck Protection Program Flexibility Act that was signed into law this past Friday.

President Trump signed into law the Paycheck Protection Program Flexibility Act (PPPFA) with the intent of easing requirements for loan forgiveness under the PPP loan program.

Here is a brief review of what is included in PPPFA:

Changes in the required spend on payroll

The requirement to spend 75% on payroll costs has been adjusted to 60%. The requirements for using the remaining 40% (formerly 25%) have not changed; intended use includes rent/mortgage payments and utilities.

Increase in the timeframe to spend the loan proceeds

The PPPFA extends the time to spend loan proceeds from 8 to 24 weeks.

Since the PPP loan calculation included the average of monthly payroll costs in 2019 multiplied by 2.5, providing more time to use the funds should allow businesses some breathing room to spend the loan proceeds on qualified expenses. 

Important notes on the PPP loan compensation

The timeframe to apply for forgiveness has not changed; businesses can apply for forgiveness as early as eight weeks after receiving proceeds.  

The deadline to rehire employees is pushed back to December 31, 2020, giving employers a bit more flexibility in getting wages to count towards forgiveness.

The requirements to rehire employees have also been eased. However, employers need to document carefully, in writing, attempts to rehire an employee who rejected the job offer. 

If an employer can demonstrate an inability to hire a similarly qualified individual, the business may still qualify for loan forgiveness.

If a business is unable to return to the same level of activity that was engaged before February 15, 2020, the business may still qualify for loan forgiveness.

Extension on repayment

The terms for loan repayment have been extended from 2 years to 5 years. The repayment schedule now defers the first payment for six months after the SBA makes a forgiveness determination

The loan repayment term is extended from 2 years to 5 years. The first payment will be deferred for six months after the SBA makes a forgiveness determination.

PPPFA allows businesses to take advantage of deferring the employer’s payroll taxes. Initially, the CARES Act did not permit deferment on the forgivable portion of the loan. 

The deferrable amount is the employer’s portion of social security taxes that would have otherwise been due between March 27, 2020, and December 31, 2020. Now, 50% can be deferred until the end of 2021, and the remaining 50% is due by the end of 2022.

Breathing room for business working to operate at 2019 levels

This new law appears to be a step in the right direction. For companies that have been unable to perform at the same levels as in 2019 and early 2020, this law provides some breathing room. 

In the hands of the SBA

It will be up to the SBA to interpret the Paycheck Protection Program Flexibility Act. Our recommendations on moving forward include meticulously documenting every financial transaction in your business and making sure you pay close attention to the expenditures that qualify for loan forgiveness.

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extensions to the cares act

How Extensions in the CARES Act can Help Hurting Homeowners

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COVID-19 has changed our lives as well as our livelihoods. Income sources have taken a massive hit, and with that, rules are having to change, deadlines are having to be extended, and significant changes are being implemented to help families survive during this stressful time.

Although a phased approach is being taken to open the economy back up, it will be a long road back to normalcy and the financial status many maintained before the coronavirus pandemic. 

Specific extensions in the CARES Act are designed to help. 

The article below details some points about the CARES Act that are important for homeowners.  

Section 4022 – Moratorium on Residential Foreclosures 

On March 27, 2020, Congress enacted the Coronavirus Aid, Relief and Economic Security Act of 2020, also known as The CARES Act, which provides for financial relief due to the COVID-19 Virus Pandemic. This Act is put into place to do precisely what the name implies. The CARES Act provides care for this who are struggling because of the stress of a halted economy. 

Section 4022 focuses on homeowners and provides a moratorium on residential foreclosures for borrowers with federally backed 1-4 family mortgage loans. It addresses the right of a homeowner to request forbearance from payment on these loans.  

Understanding the Requirements – Extensions in the CARES Act Regarding the Foreclosure Process 

The requirements only apply to federally backed mortgages, which are loans insured or guaranteed by FHA, VA, USDA, or loans that are owned or securitized by Fannie Mae or Freddie Mac. The moratorium does not apply to vacant or abandoned property or private bank loans. Under the Act, no mortgage servicer of any federally backed 1-4 family mortgage loan is permitted to do the following beginning March 18, 2020, and ending May 17, 2020; and now further extended until June 30, 2020: 

  1. Initiate any judicial or non-judicial foreclosure process; 
  2. File a motion for foreclosure judgment or order of sale; or 
  3. Execute a foreclosure-related eviction or foreclosure sale. 

Related: View our COVID-19 Legal Information and Recommendations

Utilizing the Extensions – Requesting a Forbearance 

Section 4022 also allows a borrower on a federally backed 1-4 family mortgage loan to request forbearance from payment up to 180 days with the right to request an additional 180-day extension. Section 4023 allows a borrower on certain federally backed multi-family mortgages to request forbearance for up to 30 days with two 30-day extensions. During the term of forbearance, a tenant cannot be evicted or charged late fees. Section 4024 establishes a temporary moratorium on eviction filings for particular single and multi-family housing. During the above referenced period beginning on March 27, 2020, a lessor cannot initiate an eviction for nonpayment of rent. After the moratorium period, the landlord may not evict a tenant unless a 30-day notice is provided to the tenant. 

Governor DeSantis also issued Executive Orders 20-94 and 20-121, consistent with the CARES Act, extending the foreclosure moratorium to all foreclosures and tolling residential evictions until June 2, 2020, but did not waive the obligation to make scheduled payments. Many Florida judicial circuits have also entered administrative orders which limit or prohibit foreclosure and eviction actions. These are meant to stave off the process and help families who are struggling to make ends meet.  

What About Title Derived Through Foreclosure? 

As a result of the federal and state law foreclosure moratoriums, until further notice, you are required to obtain approval from Underwriting to insure the title or issue a policy based on a foreclosure action where the certificate of title or writ of possession was issued after March 18, 2020, but before the expiration of the CARES Act and Executive Orders 20-94 and 20-121, now on June 30, 2020.  

Additionally, title to any property derived through a foreclosure initiated during the effective period of the CARES Act and/or Executive Orders 20-94 and 20-121, will not be insurable. 

As deadlines get pushed, and laws get stretched to allow for more financial breathing-room, it is essential to keep in mind how these rules apply to your specific situation. We have many questions that come into our office, and we are always honored to take the time and help someone gain clarity. Sometimes, legal rulesets can become cumbersome. That is why our lawyers are professionals at translating the legal jargon into a crystal-clear understanding of the law.  

We are here to help you understand how these rules can apply to you. If you have questions, do not hesitate to reach out to us. We can, and we will help you through it. 

Critical Advice: Selling Your Home During COVID-19

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re-opening associations

Opening Up Phase One: A Guide to Re-opening Associations

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As we enter Phase One of re-opening Florida, a question in all of our minds is, how does this affect re-opening associations and our communities? As managers and board members, we are sure you are getting a lot of pressure from both ends of the spectrum. On one end, protect the residents, and on the other, open everything up! While managers and board members certainly have no legal obligation to guarantee the health and safety of their residents, there is a degree of care that is expected given that the Association is responsible for the maintenance and the running of the Association amenities. The Association can be held liable for negligence for failure to take precautionary steps in light of foreseeable harm. 

It is accepted that we are amid an international healthcare crisis that has been acknowledged and addressed by our National and State Government officials. With guidelines from the Center for Decease Control (CDC) and State officials, it is reasonable to expect that residents would have a right to hold a Manager and their Association board to a Duty of Care comparable to those standards.    

While the board does have the authority to shut the Association amenities down, per the DBPR issued Emergency Order 2020-04 (Florida Statute 718, 719, 720 Board Emergency Powers have the same application under this order as they do under the Statute), we are not saying this is always in the best interest of the Association. 

It is a case by case situation and will depend on the amenity, the resources of the Association, the Association documents, the location of the Association, and the particular circumstances affecting that Association. Below are some general guidelines to assist you with beginning your “reopen” discussion. However, we strongly recommend you speak with your attorney before implementing any plan. 

Phase One: A Guide to Re-opening Associations Step 1: 

Are you insured? It is crucial that the Association contact your insurance agent and determine what exposure the Association, the board members, and managers have by reopening the amenities. Some policies do have bacterial exclusions, but most policies do not have viral or infectious disease exclusions.  

Phase One: A Guide to Re-opening Associations Step 2: 

Create specific guidelines for each amenity within the Association. Generalized instructions and waivers are easy, but also create more of a gray area, opening the door for potential claims against the Association. Having specific guidelines and exemptions for each amenity shows that the Association took the extra steps to ensure that the residents were aware of the particular restrictions for that amenity and accepted and agreed to abide by the rules for that specific amenity. 

Tennis Courts/ Racketball Courts  

  • Require residents to sign a waiver/ disclaimer before use 
  • Post guidelines/rules next to court 
  • Remove observation seating 
  • Limit playtime to allow usage by maximum residents and consider a signup sheet with time slots to avoid gatherings  
  • Provide disinfectant wipes and hand sanitizer or require residents to bring their own and wipe down all equipment after use 
  • Require proper social distancing of 6’ at all times 

Swimming Pools  

  • Require residents to sign a waiver/ disclaimer before use 
  • Post guidelines/rules next to the pool and within the pool area 
  • Remove all pool furniture and suggest residents bring their own if desired 
  • Close off all areas except the pool and direct access to the pool 
  • Limit the number of residents allowed at a time to adhere to the social distancing guidelines and consider a maximum time limit to allow all residents an opportunity to enjoy the facilities.  
  • Consider a signup sheet with time slots to avoid gatherings and disappointments.  
  • Provide disinfectant wipes and hand sanitizer or require residents to bring their own and wipe down all equipment after use 
  • Require proper social distancing of 6’ at all times 
  • Consider having an Association attendant at all times the pool is open to ensure the rules are being followed. 

Community Workout Room  

  • Require residents to sign a waiver/ disclaimer before use 
  • Post guidelines/rules next to the workout room and within workout room 
  • Require face mask to be worn when not working out 
  • Require personal gloves to be worn at all times 
  • Limit the number of residents allowed at a time to adhere to the social distancing guidelines and consider a maximum time limit to allow all residents an opportunity to enjoy the facilities.  
  • Consider a signup sheet with time slots to avoid gatherings and disappointments.  
  • Provide disinfectant wipes and hand sanitizer or require residents to bring their own and wipe down all equipment after use 
  • Require proper social distancing of 6’ at all times 
  • Consider having an Association attendant at all times the workout room is open to ensure the rules are being followed and equipment is wiped down after each use. 

Basketball Courts  

  • Because basketball is a contact sport, we are recommending at this time that basketball courts remain closed. 
  • You can consider removing the rims to ensure that no play will be permitted. 
  • Post clear signs that the court is closed until further notice 

Playgrounds 

  • We are recommending at this time that playgrounds and child play areas remain closed. 
  • Post clear signs that the playground/play area is closed until further notice 

Spa/Jacuzzi  

  • We are recommending at this time that spas and jacuzzies should remain closed at this time. 
  • Post clear signs that these facilities are closed until further notice 

Restaurants  

  • We are recommending at this time that these should remain closed at this time. 
  • Post clear signs that these facilities are closed until further notice 

Clubhouse Meeting Rooms  

  • Require residents to sign a waiver/ disclaimer before use 
  • Post guidelines/rules next to the facility and within the facility 
  • Require face masks and gloves to be worn when appropriate 
  • Limit the number of residents/guests allowed at a time to adhere to the social distancing guidelines and consider a maximum time limit to allow all residents an opportunity to enjoy the facilities.  
  • Consider a signup sheet with time slots to avoid gatherings and disappointments  
  • Provide disinfectant wipes and hand sanitizer or require residents to bring their own and wipe down all equipment after use 
  • Require proper social distancing of 6’ at all times 
  • No gatherings of over ten individuals at this time per State requirements 
  • Consider having an Association attendant at all times that the facilities are open to ensure the rules are being followed and facilities are properly cleaned after each use. 

Dock  

  • Require residents to sign a waiver/ disclaimer prior to use 
  • Post guidelines/rules next to the dock and along the dock 
  • Require residents to wear face masks 
  • Limit the number of residents/guests allowed at a time to adhere to the social distancing guidelines and consider a maximum time limit to allow all residents an opportunity to enjoy the facilities.  
  • Provide disinfectant wipes and hand sanitizer or require residents to bring their own and wipe down all equipment after use 
  • Require proper social distancing of 6’ at all times 

Your primary objective as managers and board members is to ensure the wellbeing of the residents of your Association. Our objective is dual-focused, the safety of the residents, and also the protection against liability of the Association. Please apply best practices and proper risk management. Speak with your attorney and get an action plan together prior to opening up your amenities to your residents. It will be in the best interest of you and the residents of your Association. 

We hope you all stay safe and healthy.  

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What factors can disqualify me from obtaining a concealed carry license in Florida?

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The qualifications necessary for an individual to be able to obtain a concealed carry license in the state of Florida are found in Fla. Stat. 790.06. For purposes of obtaining a concealed carry license, Fla. Stat. 790.06 defines concealed firearms and/or weapons as handguns, electronic weapon or devise, tear gas gun, knife or billie club but, does not include machine guns. If you are successful, your concealed carry license will be valid throughout the state of Florida for a period of seven (7) years.

To qualify for a concealed weapons license in Florida the applicant must:

  1. Be a resident and citizen of the United States or a permanent resident alien of the United States;
  2. Be at least 21 years old or older;
  3. Not suffer from a physical infirmity which prevents the safe handling of a weapon or firearm;
  4. Not be a convicted felon; (unless your right to own and possess a firearm was restored by executive clemency);
  5. Have not been “committed” for drug abuse, found guilty of any drug crime or had an adjudication withheld for any drug crime, all within the last three (3) years from the date of your application;
  6. Not chronically and habitually use alcoholic beverages or other substances to the extent that his or her normal faculties are impaired. It shall be presumed that an applicant chronically and habitually uses alcoholic beverages or other substances to the extent that his or her normal faculties are impaired if the applicant has been convicted under s. 790.151 or has been deemed a habitual offender under s. 856.011(3), or has had two or more convictions under s. 316.193 or similar laws of any other state, within the 3-year period immediately preceding the date on which the application is submitted;
  7. Not been adjudicated an incapacitated person under Fla. Stat. 744.331 or, must have waited five (5) years after such determination of incapacity was removed by court order;
  8. Has not been committed to a mental institution under chapter 394, or similar laws of any other state. An applicant who has been granted relief from firearms disabilities pursuant to s. 790.065(2)(a)4.d. or pursuant to the law of the state in which the commitment occurred is deemed not to have been committed in a mental institution under this paragraph;
  9. Not had adjudication of guilt withheld or imposition of sentence suspended on any felony unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled, or expunction has occurred;
  10. Not had adjudication of guilt withheld or imposition of sentence suspended on any misdemeanor crime of domestic violence unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled, or the record has been expunged;
  11. Not been issued an injunction that is currently in force and effect and that restrains the applicant from committing acts of domestic violence or acts of repeat violence; and
  12. Not prohibited from purchasing or possessing a firearm by any other provision of Florida or federal law.

Even if you are not prohibited from the purchase and possession of a firearm under Florida or federal law, the following circumstances could still prevent you from qualifying for a concealed carry license in Florida: 

  1. If you have a “withheld adjudication” or “imposition of sentence suspended” on any felony or misdemeanor crime of domestic violence you must wait until three (3) years after all conditions set by the court have been completed. F. S. 790.06(k)
  2. Under Federal law, if you have an indictment or information pending against you, you cannot qualify for a concealed carry license until that case has been disposed of.
  3. The Department of Agriculture and Consumer Services shall deny a license if the applicant has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence constituting a misdemeanor, unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled or the record has been sealed or expunged. The Department of Agriculture and Consumer Services shall revoke a license if the licensee has been found guilty of, had an adjudication of guilt withheld for, or had the imposition of sentence suspended for one or more crimes of violence within the preceding 3 years. The department shall, upon notification by a law enforcement agency, a court, or the Florida Department of Law Enforcement and subsequent written verification, suspend a license or the processing of an application for a license if the licensee or applicant is arrested or formally charged with a crime that would disqualify such person from having a license under this section, until final disposition of the case. The department shall suspend a license or the processing of an application for a license if the licensee or applicant is issued an injunction that restrains the licensee or applicant from committing acts of domestic violence or acts of repeat violence. F. S. 790.06(3)

Author: Jeffrey W. Smith, The Orlando Law Group

Jeffrey W. Smith is an attorney for The Orlando Law Group. His practice focuses on veteran appeals, family law, and civil litigation. He is a veteran of the United States Marine Corps, serving in Operation Desert Storm in the Middle East and Operation Restore Hope in Somalia. Jeffrey lives in Oviedo with his family.

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Concealed Carry and Florida Hurricane Evacuations

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Recently, as Hurricane Irma was closing in on Florida, Governor Scott issued a proclamation (not to be confused with “states of emergency” that are declared by local authorities under F. S. 870.044) and ordered the evacuation of certain areas of the state. As we are all now accustomed to scenes of rioting and looting during these types of emergencies; what can you do to protect yourself and your family if you do not have a concealed carry license during such an event and you are ordered to evacuate from one of the designated evacuation areas?
F. S. 790.01(3)(a) states that F. S. 790.01(1) (that makes it a first-degree misdemeanor for a person to carry a concealed weapon without a concealed carry license) does not apply to a person who carries a concealed weapon, or a person who may lawfully possess a firearm and who carries a concealed firearm, on or about his or her person while in the act of evacuating during a mandatory evacuation order issued during a proclamation declared by the Governor (unless the proclamation specifically provides otherwise) pursuant to chapter 252 or a state of emergency declared by a local authority pursuant to chapter 870. As used in this subsection, the term “in the act of evacuating” means the immediate and urgent movement of a person away from the evacuation zone within 48 hours after a mandatory evacuation is ordered.

The 48 hours may be extended by an order issued by the Governor. Note the distinction between a “proclamation” and a “state of emergency” in that if the evacuation order is by proclamation of the governor, the lawful individual may be in possession of a firearm in a public place (unless provided otherwise specifically in the proclamation) as contrasted to a “state of emergency” under F. S. 870 that only permits the possession of a firearm by a lawful individual in a public place during the “first 48 hours” of the evacuation period whether you have a concealed carry permit or not.

Author: Jeffrey W. Smith, The Orlando Law Group

Jeffrey W. Smith is an attorney for The Orlando Law Group. His practice focuses on veteran appeals, family law, and civil litigation. He is a veteran of the United States Marine Corps, serving in Operation Desert Storm in the Middle East and Operation Restore Hope in Somalia. Jeffrey lives in Oviedo with his family.

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Use Your Tax Return To Take Control of Your Debt

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According to a study from CNSnews.com, the most common form of debt comes from mortgages, at 44%. Unpaid credit card balances come next with 39%. Car loans make up 37%, and student loans round out the list with 21%. These numbers are absolutely staggering, and a large portion of that 80% will never live to see themselves debt free.

This year, rather than use your tax return on something frivolous, invest in fixing your finances. Bankruptcy is a powerful tool that aids those struggling and drowning in their debt, offering a fresh start and a chance to correct the mistakes of their past.

People who reside, own property, or have a place of business in the United States may file for bankruptcy under Chapter 7. Chapter 13 enables debtors with regular income to create a plan to repay all or part of their debts to creditors over a three-to-five-year period.

The Orlando Law Group specializes in both Chapter 7 and Chapter 13 Bankruptcy, and will help you navigate this process, and get your financial life back on track! To book a consultation, call us at 407.512.4394.

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By Jeffrey W. Smith - The Orlando Law Group

“Our new Constitution is now established, and has an appearance that promises permanency; but in this world, nothing can be said to be certain, except for death and taxes.”
-Benjamin Franklin, Letter circa 1789.

16588404 sLooking at our calendars, almost all of us can mark our birthdays, anniversaries, and important holidays but, as much as we prefer to lock this thought back in the furthest recesses of our minds, what about the day you’re going to die? All too often people roll the dice regarding their date with the Grim Reaper and all too often people lose to the house, leaving their families to deal with the consequences. Getting your estate in order by having your Will drafted and executed is one of the most beneficial responsibilities one can enact for their family in this most grievous time of need. Planning your estate can also assist you in keeping money out of your probatable estate, leaving more for your family and protecting those funds from creditors.

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You May Not be Able to Predict the Future, But You Can Plan for It

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Often of more concern than our inevitable, unknowable date of death are the circumstances surrounding how we will die. Death often comes swiftly and unexpectedly, but can also be lengthy, drawn out, and every aspect in between. Healthcare Directives will communicate your wishes to your family when you cannot communicate those wishes yourself due to incapacitation resulting from a medical condition or injury. For example, a Living Will takes the burden of “guilt” off of a family member tasked with making a determination to remove life support as that decision will no longer be theirs. The family member tasked with that responsibility will simply be carrying out the wishes of a loved one. The Healthcare Directives package at The Orlando Law Group consists of a Living Will (not to be confused with a Last Will and Testament), Durable Power of Attorney, Healthcare Surrogate Form, and lastly the HIPAA form. The other forms in our package will assist the caretaker in carrying on the financial and healthcare responsibilities of their sick or injured loved one during this time of need.

On a final note, (and I cannot stress this enough as every month I get at least one phone call from an individual crying on the other end of the line because a loved one has unexpectedly taken ill or has been seriously injured) in order to execute ANY legal document, the signer must have legal capacity. This means that the person must be competent, aware of what document it is they are signing, and understand the legal effect that document will have on that individual.

For a Will, the testator (person the Will is for) must have the ability to recognize the natural objects of one’s bounty, recognize the nature and extent of their estate, and understand that they are executing a document to plan the disposal of their estate after they die. The problem that occurs is, often times, when a person waits until they are in a critical position with their personal health or are the victim of a serious injury; they are on powerful sedatives, pain relievers or otherwise mentally compromised. In this state of mind, the injured or sick loved one does not have the capacity to sign a legal document and we are left to let the chips fall where they may.

One of the outstanding attorneys at The Orlando Law Group can help you avoid that inevitable situation, and we would be happy to answer any questions you may have about planning your estate.

Author: Jeffrey W. Smith, The Orlando Law Group

Jeffrey W. Smith is an attorney for The Orlando Law Group. His practice focuses on veteran appeals, family law, and civil litigation. He is a veteran of the United States Marine Corps, serving in Operation Desert Storm in the Middle East and Operation Restore Hope in Somalia. Jeffrey is a graduate of Oviedo High School and lives in Oviedo with his family.

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shopping in jammies

Staying Secure While Shopping in Your Jammies

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While many people enjoyed the thrill of Black Friday and other holiday shopping steals this past weekend, more and more people are turning to online shopping for their gift-giving. And why not? You can shop, even at midnight, wearing your jammies! No waiting in lines or looking for an open register. You can comparison shop, find the perfect size, and make your purchases in minutes even if you are busy. Not to mention that many online retailers now offer free shipping deals.

But, what of the dangers? Between phishing sites (where thieves attempt to swindle you out of your sign-in credentials and financial info by pretending to be a real website), malware (malicious code aimed at compromising your privacy) and cyber attacks (when hackers infiltrate a company’s computer information systems), online shopping can feel a little too risky.

While those threats are very real, a few simple precautions will go a long way in protecting your privacy while you enjoy your online shopping.

First, use common sense. If a deal is just too good to be true, it probably is. While companies have some wiggle room to discount items and offer holiday bonuses, they still need to be profitable. They can’t afford to give their products or services away anymore than you can.

Second, start at trusted sites. Do most of your shopping with retailers you know and trust. If you’ve stumbled on a deal on a lesser-known site, check its credentials. PCWorld recommends that you “look for the lock.” According to their site, you should never buy anything online from a site that doesn’t have SSL (secure sockets layer) encryption installed. SSL encrypts data and breaks it up into small pieces so that the information cannot be read by anyone wanting to intercept it. You’ll know if the site has SSL because the URL for the order page for the site will start with HTTPS:// (instead of just HTTP://). An icon of a locked padlock will appear, typically in the status bar at the bottom of your web browser, or right next to the URL in the address bar. You can also check site reviews and look for signs of certification such as third-party seals of approval (like Truste).

Third, ignore pop-up ads and spam links. These are designed to lure you away from trusted sites. Along the same lines, be wary of online contests or giveaways that ask for your personal information. Never give more personal information than is absolutely necessary. Again, it is best to stick with retailers you know and trust.

Fourth, don’t do your shopping while you’re at Starbucks or some other public Wi-Fi. Using public Wi-Fi for online purchases puts your information at risk. Hackers can access information people use on public networks – including email and credit card information. For your safety, always use a password-protected network to make purchases and access bank information.

Lastly, only pay using credit cards. When it comes to online shopping, credit cards are a safer choice than debit cards. Credit cards tend to offer an extra layer of protection as they don’t directly remove funds from your own bank account. If your debit card gets compromised, the hacker has direct access to your checking account and can spend your money instantly. On the other hand, credit card companies will work with you to track down fraudulent charges and remove them from your account.

Despite some of the risks associated with online shopping, it can be a great way to find the prefect gifts for your family and friends. There’s no doubt that it’s here to stay. In fact, some view it as the future of conventional shopping. So, continue to enjoy getting your shopping done in your jammies. Just make sure you’re smart about it.

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Illegal Debt Collection Practices

Illegal Debt Collection Practices

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It’s important to know what debt collection agencies can and cannot do. Knowledge is power, and that’s true for any situation. Not only can you use your knowledge of these laws to protect yourself from harassment, but if a collector violates one of these laws, you may be able to: use the violation to negotiate a better settlement, file a complaint with the Consumer Financial Protectin Bureau  or the Federal Trade Commission, or sue the collector.

The FDCPA (15 U.S.C. §§ 1692 to 1692p) requires that a collection agency make certain disclosures and prohibits the collector from engaging in many kinds of abusive or deceptive behavior. Here are some collection actions prohibited by the FDCPA.

Communications With Third Parties – A collection agency can’t contact third parties about your debt. There are a few exceptions to this general rule. Collectors are allowed to contact:

  • Your attorney. If the collector knows you are represented by an attorney, it must talk only to the attorney, not you, unless you give it permission to contact you or your attorney doesn’t respond to the agency’s communications.
  • A credit reporting agency
  • The original creditor
  • Collectors are also allowed to contact your spouse, your parents if you are a minor, and your codebtors. But they cannot make these contacts if you have sent a letter asking them to stop contacting you.

Communications With You – A debt collector’s first communication with you must tell you that they are attempting to collect a debt and that any information obtained from you will be used for that purpose. In subsequent communications, the collector must tell you his or her and the collection agency’s name.
A collector cannot contact you:

  • At an unusual or inconvenient time or place—calls before 8 a.m. and after 9 p.m. are presumed to be inconvenient
  • Directly, if it knows or should have known that you have an attorney.
  • At work if it knows that your employer prohibits you from receiving collections calls at work.

Harassment or Abuse – In general, a collection agency cannot engage in conduct meant to harass, oppress, or abuse. Specifically, it cannot:

  • Use or threaten to use violence
  • Harm or threaten to harm you, another person, or your or another person’s reputation or property
  • Use obscene, profane, or abusive language
  • Publish your name as a person who doesn’t pay bills list your debt for sale to the public
  • Call you repeatedly
  • Place telephone calls to you without identifying the caller as a bill collector

It’s important to know what debt collection agencies can and cannot do. Knowledge is power, and that’s true for any situation. Not only can you use your knowledge of these laws to protect yourself from harassment, but if a collector violates one of these laws, you may be able to: use the violation to negotiate a better settlement, file a complaint with the Consumer Financial Protectin Bureau  or the Federal Trade Commission, or sue the collector.

The FDCPA (15 U.S.C. §§ 1692 to 1692p) requires that a collection agency make certain disclosures and prohibits the collector from engaging in many kinds of abusive or deceptive behavior. Here are some collection actions prohibited by the FDCPA.

Communications With Third Parties – A collection agency can’t contact third parties about your debt. There are a few exceptions to this general rule. Collectors are allowed to contact:

  •       Your attorney. If the collector knows you are represented by an attorney, it must talk only to the attorney, not you, unless you give it permission to contact you or your attorney doesn’t respond to the agency’s communications.
  •            A credit reporting agency
  •            The original creditor
  •       Collectors are also allowed to contact your spouse, your parents if you are a minor, and your codebtors. But they cannot make these contacts if you have sent a letter asking them to stop contacting you.

Communications With You – A debt collector’s first communication with you must tell you that they are attempting to collect a debt and that any information obtained from you will be used for that purpose. In subsequent communications, the collector must tell you his or her and the collection agency’s name.

  A collector cannot contact you:

At an unusual or inconvenient time or place—calls before 8 a.m. and after 9 p.m. are presumed to be inconvenient

Directly, if it knows or should have known that you have an attorney.

  At work if it knows that your employer prohibits you from receiving collections calls at work.

H    Harassment or Abuse – In general, a collection agency cannot engage in conduct meant to harass, oppress, or abuse. Specifically, it cannot:

Use or threaten to use violence
Harm or threaten to harm you, another person, or your or another person’s reputation or property
Use obscene, profane, or abusive language
Publish your name as a person who doesn’t pay bills list your debt for sale to the public
 Call you repeatedly
Place telephone calls to you without identifying the caller as a bill collector

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Your Charitable Donations and the IRS

Your Charitable Donations and the IRS

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Many people choose to lower their tax bill my making charitable contributions. There are certain steps that a person can take to be sure that their contributions are reflected on their tax returns.

First and foremost, be sure that you are contributing to a qualified organization. Keep in mind that ‘donations’ to individuals or certain political organizations are not charitable. If you are unsure of whether an organization is qualified, check IRS Publication 526.

If you receive any benefit for your donation, the value of that benefit does not count towards your deduction amount. This is because you received something in return for your money. For example, if you donate $100 to a charity and receive something valued at $50 in return, you can only deduct $50 as a charitable deduction. The fair market value of an item is the amount that you could reasonably sell it for on the open market.

If you wish to donate and deduct a purely monetary gift – such as one made through cash, check, or other monetary instrument – you will need a record of the transaction in order to deduct it. A bank record or a written letter or receipt from the organization with the details of the gift generally suffices. If you prove the gift through a letter, be sure the letter contains the name of the organization, the amount of the contribution, and the date. Taxpayers must itemize any deductions for charitable contributions on IRS Form 1040.

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What are Some Common Types of Fraud

What are Some Common Types of Fraud?

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Nobody likes being tricked, mislead or ripped off. In fact, it’s illegal. It’s fraud, and that’s a crime.

Here are some common types of fraud you’re apt to encounter on any given day and ways to avoid them:

  • Website Misdirection. Buying online can be dangerous, even from trusted retailers. It’s not that those companies are bad,
    but sophisticated hackers have found ways to mimic these companies’ checkout pages so when you go to pay for your purchase, you’re unknowingly giving your credit card information to someone else. Whenever you reach a checkout page, make sure to check the website URL at the top of your web browser. Make sure it matches that of the original site and doesn’t contain an odd country extension.
  • Bad Checks. This is a simple and easy fraud. Someone pays you with a check when there’s actually little or no money in the account. To protect yourself, never take a check that doesn’t include an address and confirm both the name and address against the buyer’s driver’s license.
  • Phony Internet Sellers. While surfing the Net, you’re liable to run across items (often name brand watches, jewelry or electronics) being offered at ridiculously low prices. Many of these sellers are phony; they’ll take your money, but never deliver the item. Always check user reviews and ratings before buying online.
  • Identity Theft. The fastest-growing type of fraud in the world is identity theft. It occurs when the fraudster uses your credit card or bank account information to buy items and then charge them to you. The simplest way to protect yourself is to destroy by shredding, receipts, bank card statements, credit card statements before throwing them in the trash.
  • Charities Fraud. Americans enjoy giving to worthy causes, which is something con artists will take advantage of. Especially around the holidays, you may get emails or phone solicitations asking you to donate to charities. Some may be legitimate, others are not. If you want to give to a charity, never respond to a solicitation. Choose the charity for yourself and donate to them directly.
  • Debt Elimination. Many Americans are in debt. If you are in serious debt, you may be tempted by ads by companies that promise to negotiate with banks and credit card companies on your behalf so you can zero your debt for just pennies on the dollar. Many of these scams ask for partial payment up front – often $1,500 to $2,000 – as well as all your credit card information. This service is not real. They will take your money and all your credit card information, which the scammers are now free to use.

In the broadest sense, a fraud is a deception made for personal gain or to damage another individual. The specific legal definition varies. Fraud is both a criminal offense and is also the basis for civil liability. Many hoaxes are fraudulent, although those not made for personal gain are not technically frauds. Defrauding people of money is the most common type of fraud and the type most frequently prosecuted. Contact a lawyer if you feel that you have been the victim of fraud.

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Understanding Defective Liability Product Claims

Understanding Defective Product Liability Claims

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Sometimes products break. It could be our fault, but sometimes it is due to faulty manufacturing.  If you have been hurt or have underwent any other pain or suffering, or damage to your property because of a product you used, you may have a defective product liability claim. The range of defective product cases is broad, and claims usually fall into one of three categories of product liability:

  1. Defective manufacture
  2. Defective design
  3. Failure to provide adequate warnings or instructions concerning the proper use of the product

For each of these claims, you must show not only that the product was defective, but that the defect caused your injury.

The most obvious type of product liability claim is when the product that caused the injury was defectively manufactured.
A defectively manufactured product is faulty because of some error in making it. It could have been a problem at the factory where it was made. As a result, product that caused the harm is somehow different from all the other ones on the shelf.

Examples of a manufacturing defect include:

  • A bicycle with a cracked chain
  • A tainted batch of baby formula containing a poisonous substance
  • A motorcycle missing its brake pads

With defective design, a product’s design is inherently dangerous or defective. Defective design claims involve the claim that an entire line of products is fundamentally dangerous, even though the product that caused harm was perfectly made according to the manufacturer’s specifications.

Examples of a design defect include:

  • A children’s toy has a tendency to flip over while children are using it as directed
  • A type of sunglasses that fail to protect the eyes from ultraviolet rays
  • A line of toasters that can electrocute the user when turned on high

The last type of product liability claim includes a failure to provide adequate warnings or instructions about the product’s proper use. Failure-to-warn claims typically involve a product that is dangerous in some way that’s not obvious to the user or that requires the user to utilize special precautions or attentiveness when using it.

Examples of a failure-to-warn claim include:

  • Failing to warn that the seats in a car might collapse backwards in an accident if the driver was overweight
  • An allergy medicine that does not include on its label a warning that it may cause dangerous side effects if taken in combination with another commonly taken drug such as aspirin, or
  • Model car paint that is sold without adequate instructions for safe handling and use
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